Why The Asian American Students Lost Their Case Against Harvard (But Should Have Won)
Forbes, 1 Oct 2019:
On Tuesday a federal judge ruled against a group of Asian American students who claimed that Harvard discriminated against them in their admissions policy. The full decision is here. There is no question that Asian American students face a disadvantage in gaining admission to Harvard. The question is why and whether Harvard is responsible for it.
The reason that it is harder for Asian Americans to get into Harvard is that their “personal ratings” (a subjective evaluation of personal qualities) are, on average, significantly lower than for white applicants. The federal judge, Allison D. Burroughs, wrote: “the Court therefore concludes that the data demonstrates a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers, holding constant any reasonable set of observable characteristics.”
However, the Judge also held that the plaintiffs could not prove that the lower personal ratings are the result of “animus” or ill-motivated racial hostility towards Asian Americans by Harvard admissions officials.
This leaves the question of why Asian American applicants were being deemed to have, on average, poorer personal qualities than white applicants. The court entertained two theories. Judge Burroughs wrote that: “It is possible that the self-selected group of Asian Americans that applied to Harvard during the years included in the data set used in this case did not possess the personal qualities that Harvard is looking for at the same rate as white applicants . . .”
It is disappointing that a federal judge would indulge in that sort of conjecture. Surely the burden should be on Harvard to prove that its lower evaluation of the personal characteristics of Asian Americans is not the result of racial bias rather than vice versa. The court must be aware of various stereotypes of Asian Americans as “grinds” and math geeks who lack personality. The burden should be on Harvard to prove that such stereotypes are not at play here.
The judge wrote that the racial gap between the evaluation of Asian Americans and whites was small, but they are statistically significant. By definition, that means that it is very unlikely the gap is the result of chance. The court should be demanding that Harvard explain the gap or change their approach. Asian Americans cannot be expected to prove that they have personalities that are as admirable as whites. Given the racial gap, Harvard should have to prove that its evaluation system is fair.
The court’s second explanation for the racial “personal rating” gap is that there is racial bias in the evaluations by teachers and counselors. The judge wrote: “teacher and guidance counselor recommendations seemingly presented Asian Americans as having less favorable personal characteristics than similarly situated non-Asian American applicants . . . Because teacher and guidance counselor recommendation letters are among the most significant inputs for the personal rating, the apparent race-related or race-correlated difference in the strength of guidance counselor and teacher recommendations is significant.” This seems like a smoking gun showing that Asian American applicants are victims of discrimination. Nonetheless, the court ruled in favor of Harvard because she reasoned that: “Harvard’s admissions officers are not responsible for any race-related or race-correlated impact that those letters may have.”
Judge Burroughs should have ruled the other way here. If Harvard is knowingly using instruments that are racially biased (the counselor and teacher recommendations) and does not compensate for that bias, then Harvard’s process is biased. If Harvard didn’t already know the letters were biased, it knows it now.
To be fair to Harvard, it is between a rock and a hard place in some ways. When it relies on objective tests like the SAT’s it is often accused of using an instrument that is biased against African Americans. When it uses a subjective tool such as counselor and teacher letters, it must now contend with the fact that they are biased against Asian Americans. So the Harvard admissions officers are hardly a group of villains. But the judge is wrong to suggest that Harvard can take a “not our fault” approach to demonstrable anti-Asian bias in the letters that it relies upon. Difficult though it may be, Harvard must do better.
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by Evan Gerstmann
I’ve always been interested in how we should balance individual and minority rights with majority rule. After several years practicing law in New York city, I found my true calling as a college professor and researcher. I’ve written about campus free speech, same-sex equality and racial justice for Cambridge University, The University of Chicago, and Harvard University. My latest book is “Campus Sexual Assault: Constitutional Rights and Fundamental Freedoms”.
