Harvard wins affirmative action case. . . for now

October 2, 2019 • 12:00 pm

Yesterday’s 130-page decision by federal judge Allison Burroughs (pdf here) puts to rest, probably temporarily, the legal challenge to Harvard’s admission policy on the basis of racial discrimination levied by a group called Students for Fair Admission.

The group contended that Harvard systematically discriminated against Asian-American applicants, using “race” as a main factor in admissions decisions, thus instituting a system of race-based discrimination against one group. Judge Burroughs ruled against the plaintiffs on all counts and, while admitting that Harvard’s admission policy was “imperfect”, did not find systematic discrimination against Asians.

I think this is the right outcome, as I agree with the precedent Regents of the University of California v. Bakke stipulating that while racial quotas are discriminatory, the use of race as one factor for admission is necessary. My own view is that this should obtain so long as some groups have suffered unequal opportunities. Those groups, for Harvard and many schools, would be African-Americans and Hispanics.

I believe that diversity, including gender diversity, ethnic diversity, socioeconomic diversity, and ideological diversity, is an inherent good at colleges, and colleges should strive to admit classes diverse in those ways.

I haven’t read the judge’s entire decision yet, as I’m sitting in an airport, but I’m worried about two things—one about the present case and the other about its future.

During the case, or so I read, the plaintiffs argued that Harvard reduced Asian-American admissions by systematically downgrading their “personality scores”.  And this is indeed admitted by the judge in her decision:

Harvard did not offer a competing regression model to show that no statistically significant relationship between Asian American identity and the personal rating exists, and 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.

But she dismissed that relationship because Harvard interviewers testified that they did not deliberately use ethnicity when assigning personal ratings.  Well, how credible is that? Of course they would say that, either to help Harvard or because they didn’t detect unconscious biases. Further, the judge argued that Asian-American status explained only a part of the variation in personality scores, not all of it. To any scientist who partitions causes of variance, this is bizarre. Of course there will be other things affecting personality scores, but here we have one that is statistically significant (I don’t know how big the effect was).

Finally, Harvard maintained, and the judge accepted, that secondary school recommenders, such as guidance counselors, also rated Asian-Americans lower than other groups, and so the discrimination onus might not have been on Harvard:

The Court reiterates that to  the extent that disparities in the personal ratings are explained by teacher and guidance counselor recommendation letters, Harvard s admissions officers are not responsible for any race-related or race- correlated impact that those letters may have.

Yes, but to what extent were disparities in personal ratings explained by letters of recommendations, and to what extent by personal interviews with Harvard vetters? This could of course, be tested by looking at the effect of personal interviews on the process, but that wasn’t done.

So what bothers me is that this may well be a form of active discrimination. Even if the downrating of personalities is based entirely on letters from guidance counselors and the like, this is still a form of discrimination, and one now known to Harvard (it was part of their defense). This practice cannot be allowed to stand.

The personality assessment, and the downgrading of some groups that allows them to be underrepresented in terms of their numbers, seems to me verging on a kind of quota system. Granted, if Harvard is to have a diverse class, and also granting that test scores and grades are lower for African-Americans and Hispanics than for whites and Asian-Americans, some race-based criterion will have to be used in the process. And that will approximate a quota, though not an explicit one. Such is the difficulty that the Supreme Court raised in the Bakke decision, a difficulty that seems hard to overcome.

Still, I think Burroughs’ decision is the right one, with the exception that the judge should have demanded that Harvard investigate and overhaul the use of “personality scores” with respect to race.

But this case will surely be appealed to the Supreme Court, which is more conservative than the 1978 court that decided the legality of affirmative action.  And even the 1978 Court was fractured, with six opinions among nine justices, and the final opinion a “plurality” opinion, not representing a majority of the court but garnering more support than any other decision.

What will the new Supreme Court do? I’d like to think it would adhere to Bakke standards as a precedent, but who knows. If it doesn’t, the entire college admissions system of America will be thrown into chaos.

41 thoughts on “Harvard wins affirmative action case. . . for now

  1. Putting too much emphasis on affirmative action, unfortunately avoids addressing the root problems involving lack of opportunity for poor students. No day care, awful schools and poor healthcare can’t be remedied by affirmative action which most often puts poorly prepared students in majors where they can’t compete.
    It’s a lot more expensive, but cut the military and start to fix the real problems.

    1. Cut the military for sure but there is a lot more money available for these purposes as well with a good amount of overhaul of our taxes as they currently exist. I will leave it for the democrats in office next time around to work it out. Anyway, the school needs to stop the trickery to reduce certain segments from attending school.

  2. Using personality evaluation to skew the selection process seems underhanded. I would rather see overt quotas with goals to obtain diversity. Isn’t diversity worth it?

  3. If “personality assessments” were taken seriously, then no flamboyantly “woke” applicant would be admitted to Harvard, to any other college, or to any party.

  4. Here’s my problem. Affirmative action is based on perceived discrimination of groups but it affects individuals.

    Harvard can say “black Americans are educationally disadvantaged, therefore we will skew the entry process in their favour”. These seems reasonable because it’s true of black Americans in general. However, it doesn’t work when you look at the individuals involved. Would it, for example, be fair to skew the entry process in favour of Barack and Michelle Obama’s daughter compared to, say, a white boy who grew up on a trailer park?

    I’m absolutely fine with the idea of saying “this candidate had to battle discrimination and went to a bad school because of their skin colour therefore we will give them an advantage in their application”, but to give that advantage to a whole class of people just because some, or even the majority, of them were discriminated against is wrong.

    1. Exactly. I think the idea behind affirmative action is only fair when looking at two individuals who otherwise have the same merit when it comes to what’s considered for acceptance (be that for college or a job). When you start rejecting individuals of significantly higher merit for others simply because of race, that’s when it seems to become patently unfair.

    2. Interesting example, since a lot of folks have said that although it is true that there is still a lot of residual racism in the US, what is much more of a problem is *classism*, of which a lot of the academic “woke” are studiously ignoring.

  5. In my view, “affirmative action” falls under Bill Maher’s definition of political correctness as “elevating sensitivity above truth.” The policy should never have been initiated in the first place and should be abolished forthwith.

    If an applicant can show disadvantages that may or may not be the result of being Black or Hispanic (what Charles Sawicki invokes in #1 above as “the root problem involving lack of opportunity for poor students”), then yes, some allowance or adjusting of standards might be made for that. But being Black or Hispanic is not in itself a disadvantage, and arguing otherwise is racism, pure and simple.

    1. Your view of truth has little to do with reality. You think the education in all the intercity schools in all the cities across the country is equal to the schools and education in the suburbs and smaller white cities. And all those low income kids get the same education? That last sentence of yours may or may not be racist but it makes little sense.

      1. “And all those low income kids get the same education?”

        I thought I made it clear that I have no problem with adjusting standards to accommodate “low-income kids.” But not all Blacks or Hispanics are low-income kids and not all low-income kids are Black or Hispanic. As always, Randall, I respect your input, but it seems to me you shot from the hip on this one.

        1. You just bore me with semantics. Please go look up the definition of affirmative action and see if that helps. I have no time for word games.

    2. Affirmative action would be justified if it favored applicants with potential but whose achievements at school were less because of poor schools or disadvantaged backgrounds. If this was the case these students would have a GPA during the Junior/Senior years which was the same as the mean of the student body. I have never seen data related to this question. Probably it is taboo to even ask it.

      As argued above, it is also a rather a crude tool to use skin pigmentation as a proxy for being disadvantaged.

  6. I’m always forgetting the name of the author or I’d link the essay, but in 68 or 69 a professor predicted what would happen if universities lowered their admission standards for the sake of diversity. It was prophetic in describing today’s University.

    1. Describing what, exactly? Are you suggesting that today’s universities are not of the same caliber because they’ve let the riff-raff in?

        1. So this is one of his predictions about black recipients of AA, who he thinks are “unable to compete on even terms in the study of law”;

          Demands will be made for elimination of competition, reduction in standards of performance, adoption of courses of study which do not require intensive legal analysis, and recognition for academic credit of sociological activities which have only an indirect relationship to legal training.

          Do you have any evidence -any- that this prediction is true?

          1. Just look at what happened at Oberlin, they gave course credits for taking part in protests.

            Or for that matter the rise of ‘Identity’ Studies and the push to devalue Science, Reason, Logic, Objectivity, et al

              1. Departments of grievance studies, grade inflation, masters theses and doctoral dissertations based on “lived experience” rather than scholarship, everything in that letter has come to pass. Follow Real Peer Review for proof.

  7. I’m liberal on nearly every issue, but I don’t like affirmative action. If we don’t want racial discrimination, we should stop discriminating on the basis of race.

    It also doesn’t do racial minorities a favor. A smart minority kid from a poor high school who is the best in math in his school may find himself the worst in math at MIT.

    I’m all in favor of improving education for disadvantaged people of all races, including reforming our awful property-tax funding of public schools, but affirmative action in higher education isn’t a solution.

    1. “I’m liberal on nearly every issue, but I don’t like affirmative action.”

      Good for you, Stephen. Affirmative action is one of those issues that, for no good reason I can see, breaks along party lines. Being neither a Democrat nor a Republican (“A pox on both their houses!” I say), I’m not inclined to worry about which badge of the tribe I’m perceived to be wearing. As with affirmative action, packaged politics would be better done away with, the sooner the better.

      1. Unfortunately, nearly every issue must break along party lines these days. If the other party supports it, yours must oppose; if the other party opposes it, yours must support.

        Heck, look at perceptions of Russia. With Reagan, Republicans saw Russia as the enemy. With Clinton, Democrats starting loving the new Russia. With W., Republicans starting loving Putin. With Obama, Republicans started hating Putin. With Trump, Republicans now must like Putin and Democrats must hate him.

        The pendulum swings on an axis, one side of it labelled “Republican” and the other “Democrat.”

        1. “If the other party supports it, yours must oppose; if the other party opposes it, yours must support.”

          You have a point about the what the parties must support or oppose, BJ, but I was talking more about what any given individual within the party must support or oppose. Our host sets a good example, I think, about being critical of one’s own party. As I noted, I have the advantage of not belonging to either party, so don’t have to worry about being “disloyal.”

          I suppose I have the added advantage of just not taking politics all that seriously. The only thing that gets my dander up is sloppy thinking, no matter what the source. (By “sloppy thinking” I mean, of course, thinking that doesn’t align with my own. 😊)

          1. I think we’re basically on the same wavelength. I don’t belong to either party either, though I wouldn’t feel any need to support or oppose anything even if I did. I’m my own man.

            1. Do, BJ, sre you suggesting that those who are registered Democrats or Republicans must not be “their own man” (or woman?

    2. Like your last paragraph Steve.
      Harvard and similar elite Universities are grounds for uber-excellence, not so much a place for social experiments; there are 4000+ other places for that.
      Diversity is good but should be on par.

  8. Affirmative action raises very complex issues. Although its beneficent intent is clear enough, its application suffers from various ambiguities discussed by posters above. But a different problem is connected with the way affirmative action is commonly discussed in university settings. First, it is often accorded a status like that of the virgin birth in the Catholic catechism, about which the faintest question is denounced as heresy. And second, its holiness is such that all manner of dishonesty is permitted in furthering its goals. Given what every academic knows about how admissions offices work, one cannot help suspecting that those “personal assessment” scores at the Harvard admissions office are another such gimmick.

  9. What will the new Supreme Court do?

    Justice Anthony Kennedy was the swing vote the last time SCOTUS took up this issue, in Fisher v. University of Texas (2016) (aka “Fisher II”). So I guess it will come down to how the two new justices appointed since then — Gorsuch and Kavanaugh, both former Kennedy law clerks — come down on the issue now. I suspect neither has ever seen an affirmative-action program he approves of.

    FWIW, Anthony Kennedy’s predecessor as the Court’s swing vote, Sandra Day O’Connor, predicted in 2003, in Grutter v. Bollinger, that college race-conscious admission programs would no longer be needed in 25 years.

  10. It seems to me that if one wants admissions to match the racial make-up of the nation, then one needs either: (1) racial quotas, or (2) up-rating or down-rating applications according to race, in order to achieve the same goal as quotas.

    If one doesn’t regard either of those as acceptable, then one needs to accept that admissions may differ substantially from the racial makeup of the nation.

  11. Several posts here mention “poor schools.” I take it that “poor schools” most likely means a significant fraction of teachers in a “poor school” are “poor teachers,” (borderline) incompetent in their areas of certification, and/or unmotivated to bring to bear what (if any) pedagogical skills they possess. (I reasonably gather that “poor administrators” are included in “poor teachers.”)

    Does that say it all about the cause(s) of “poor schools”?

    If a school has to have metal detectors and other methods of detecting, and preventing the use of, firearms, knives, shanks and the like, to my mind that is indicative of a major cause of “poor (and unsafe) schools.” Who brings these weapons to school? Teachers? Someone who values intellectual curiosity and academic excellence? To the extent that those positive characteristics are absent in students, those students are “poor students” who contribute to the poorness of “poor schools.” I view it is one of the several manifestations of the “Anti-Intellectualism in American Life” (Hofstadter).

    In the last few weeks, the NYC Schools chancellor and the NY Times have made noises about doing away with academically gifted and talented programs. There’s been great push-back, including from the Asian community, surprise, surprise. (I wonder if qualifying tests for such programs will be replaced with Harvardian “personality assessments.”)

    1. Yes, it has a lot to do with the teachers. “Poor schools” doesn’t necessarily have anything to do with money. (Some of the worst schools are quite lavishly funded.) Places like New York are eliminating testing for teachers because blacks and Hispanics have a hard time passing those tests. As far as I know, those tests usually don’t check much specialized knowledge, but primarily basic literacy and arithmetic, and admitting teachers who fail them means you get illiterate and innumerate teachers. (Furthermore, any attempt to increase the quality of teachers would involve a disproportionate firing of black teachers, which is politically impossible.)

      But it also has a lot to do with parents. One of the better predictors of the quality of a school is the degree of parental involvement. Some school districts have gone to significant lengths to incentivize parents to get involved in their childrens’ education, for instance by paying parents to attend PTA meetings, but even when that succeeds in getting parents in the door it doesn’t actually help improve things much. Children going to “poor schools” often have “poor parents”, which again might be related to poverty but just as often is a reflection of apathy.

      Regarding New York’s plan to get lots of blacks and Hispanics into the best schools by letting them bypass the entrance exams… well, it seems just foolish to me. Those schools are the best because they have the best students, not the other way around.

      1. “Some school districts have gone to significant lengths to incentivize parents to get involved in their childrens’ education, for instance by paying parents to attend PTA meetings . . . .”

        I wonder if that is a permanent line item in every NYC school budget.

        As they say on ESPN, that is “taking it to the next level.” Anyway, after all, this is Amuricuh.”

      2. Let us ignore what is ‘politically impossible’ for the moment. Suppose we can test teachers and fire those who are no good.

        I am interested in finding out how to fix the system at least in principle. Giving all kids a decent chance is the long-term solution to the problem.

        How would we go about improving the system? That is, how many schools are wee talking about? How many good teachers do we need? In which areas?…

    2. “If a school has to have metal detectors and other methods of detecting. . . .”

      I’m getting a little self-conscious since I’ve already posted 4 comments on this thread, but couldn’t pass this up without an anecdote: at a “poor school” here in Portland that my wife taught at they had to introduce metal detectors to address the problem of kids bringing weapons to school. After three months, however, they discontinued the practice because not enough kids were bringing weapons to school to make the detectors cost-effective. Clear thinking in our public schools!

      1. Appears the school system is kindred spirit to Boeing mgmt. In NYT today a business section article of Boeing engineer stating that mgmt. for reasons of cost, declined safety precautions that would have reduced the likelihood of the malfunctioning causing the two 737 crashes.

        I wonder if enough contraband passes through airport security systems that they remain “cost effective.”

  12. I find I accept affirmative action, warts and all. It is unrealistic to think that we will suddenly start having national policies for 300 million people that work flawlessly.

    Anything we do is going to have loopholes and be misused by some people some of the time. While it has had its failures, affirmative action has also had some successes, and something is better than nothing.

    It has been around long enough now that most people are used to it. It makes more sense to try and improve it than to abandon it altogether.

  13. I think being stricter on Asian assessments is racist. Harvard has a recruiting issue and not an admissions issue. The problem with other races having a poor education needs to be addressed well before college admission.

    1. I think all high school counselors should refuse to carry out the fatuous “personality assessment” Harvard and its ilk impose on them. Let Harvard, et al, solely take the trouble to conduct it. Harvard, et al (including a federal district court judge), then could no longer fob any accountability for assessment bias on anyone other than Harvard, et al.

  14. Are universities institutions for producing the most intellectually capable people or for social engineering? How you view that issue will determine whether you think race should be a criterion for entry.

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