The future of affirmative action for higher education institutions across the United States may hinge on the impending decision of Judge Allison D. Burroughs in the District of Massachusetts on a lawsuit filed against Harvard University by Students for Fair Admission (“SFFA”). After a lengthy trial that included arguments regarding standing, racial balancing and the good-faith consideration of race-neutral alternatives, the closing statement of SFFA focused on one critical assertion—that Harvard intentionally discriminated against Asian American applicants by disproportionately assigning them lower personality rating scores than applicants of other racial groups.
SFFA alleges that Harvard’s admissions policy violated Title VI of the Civil Rights Act of 1964 in part by consistently assigning Asian American applicants low personality ratings despite the applicants’ higher standardized test scores, better grades, and stronger extracurricular resumes than applicants of any other racial group. In their evaluation of each applicant, Harvard’s admissions office gives each student a personality score, academic score, extracurricular score, athletic score, and overall score. For the personality rating, each applicant is scored from 1 to 4, with 1 indicating an applicant with “truly outstanding qualities of character” and 4 indicating an applicant with “questionable or worrisome qualities of character.” Based on his statistical analysis of over 160,000 Harvard applications, SFFA’s expert Dr. Peter Arcidiacono of Duke University concluded that the school’s admissions officers consistently assigned Asian American applicants lower personality scores than white, African American and Hispanic applicants. Harvard’s admissions officers, who evaluate an applicant merely by reading a file of documents, assign lower personality rating scores than the scores given by the school’s alumni interviewers, who meet and question the students in person. In fact, alumni interviewers tend to give Asian American applicants personality scores comparable to those of white applicants and higher than the personality scores of African American and Hispanic applicants. It is clear that the evaluations based on personal interactions with the applicants reflect higher personality rating scores than the evaluations based on the impersonal reading of application materials.
Harvard’s explanation, evident in Dean of Admissions William Fitzsimmons’ statements during the trial, is that admissions officers give low personality scores to Asian American applicants in part because recommendations given by the applicants’ guidance counselors and high school teachers are typically weaker than recommendations submitted on behalf of white applicants. However, SFFA’s expert Dr. Arcidiacono determined that Asian American applicants received strong overall scores from their teachers and counselors, directly contradicting Harvard’s claim. Moreover, it is highly unlikely that every single Asian American applicant has weak recommendations from teachers and guidance counselors. While neither party asserts this particular argument, it is plausible that “weak” recommendations for Asian American applicants by their guidance counselors and teachers are a result of the same implicit bias and stereotyping of students that Harvard’s admissions officers are allegedly engaging in. Moreover, Dean Fitzsimmons’ contention fails to address the unlikelihood that high-performing Asian American students are receiving weak recommendations from the very teachers who gave them those high grades.
In order to give more guidance to its admissions officers on the ways to consider race in their evaluation of applicants, Harvard added new instructions to the Reading Procedures released by the school in early October of this year. Specifically, the procedures instruct admissions officers to consider “characteristics not always synonymous with extroversion” and that “particularly reflective” or “insightful” applicants should earn higher personal ratings. Although the admissions office releases a new set of reading procedures each year, the particular addition of this instruction on eliminating race from the personality rating score may be in response to the ongoing litigation. Prior to this year’s reading procedures, no guidelines contained explicit instructions on using race, and previous versions of the reading procedures offered significantly shorter explanations as to Harvard’s methodology for determining personality scores.
Despite Harvard’s new policy of removing race as a factor in the personality score, the school continues to encourage admissions officers to consider race or ethnicity as a factor in the evaluation of a student’s overall application. The school’s policy reads that “the consideration of race should be in connection with the applicant’s discussion of the effect an applicant’s race or ethnicity has had on the applicant, not simply the fact alone that an applicant has identified as a member of a particular race or ethnicity.” This instruction to Harvard’s admissions officers aligns with the Supreme Court’s accepted views on student body diversity. In Regents of the University of California v. Bakke, the Court recognized that the attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education. If Harvard’s admissions officers only take race into account for the overall score rating, then the university’s affirmative action policy also meets the Supreme Court’s holding in Grutter v. Bollinger. In that 2003 case, the Court stated that racial preference must be limited as a “plus factor,” which ensures that each student is evaluated as an individual, without race or ethnicity as the defining feature of the student’s application. By now encouraging admissions officers to consider race only for the overall score, instead of specifically in the personality score, Harvard has effectively recalibrated its affirmative action policy.
In her majority opinion in Grutter, Justice O’Connor noted the Court’s expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” In one respect, student body diversity in higher education institutions serves the compelling government interest of remedying past discrimination against African American and Hispanic people. Lost in that discussion, however, is the past discrimination against Asian people in the U.S., albeit a level of systemic discrimination less severe than that historically experienced by African Americans. In another respect, affirmative action policies based on race also ensure that public institutions, including higher education institutions, are open and available to people of all races and ethnicities in American society. However, SFFA has likely provided enough evidence to show that Harvard’s affirmative action policy deprives Asian American applicants from admission into the school due to the biased rating of their personality scores.
While Justice O’Connor expressed an optimism that the vestiges of historical racial discrimination would fade by 2028, the current dialogue surrounding race and education indicates that this may have been premature. On numerous occasions, the Trump administration has already voiced their opposition against using race as a factor to diversify schools. In July of this year, the Department of Education and Department of Justice rescinded seven Obama-era policy guidelines that encourage the use of affirmative action to increase racial diversity in colleges, high schools, and elementary schools. In addition, the Department of Justice filed an amicus brief in support of SFFA’s motion for summary judgment in the recent trial, demonstrating the current administration’s position on Harvard’s particular admissions policy and race-based affirmative action policies in general. Given these indicators, the current executive branch does not share Justice O’Connor’s vision.
In Grutter, the Court recognized that race-conscious affirmative action policies must only be used to achieve a critical mass of student body diversity. The Court, by necessity, kept vague its definition of a critical mass because the intended impact of diverse college classes on general American society is unclear. From one perspective, affirmative action is needed in order to expose students in their young adult years to peers of different races and ethnicities. If being surrounded by diverse peers allows students to learn early on to purge themselves of implicit biases and avoid stereotyping their peers based on race or ethnicity, then the need for such race-based policies in college admissions is clear. Affirmative action’s goal of ensuring the advancement of minorities inherently includes the goal of removing biases against them in the professional world. This goal is especially relevant to Asian Americans, who are less likely than both African Americans and Hispanics to be promoted into management roles in the workforce. The value of a “diverse” education is diminished if affirmative action policies fail to reduce the false notion of Asian Americans inherently lacking leadership skills. More pressingly, affirmative action policies will fail Asian American graduates if they are not allowed in the classroom in the first place.