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The Court & Harvard Admissions

Terry H. Schwadron

Oct. 16, 2018

A federal court case opened in Boston yesterday charging thatHarvard University discriminates against Asian-American applicants, in effect saying that there is a cap on the number of Asian-Americans, who now make up about 25% of the student body.

While the case focuses on discrimination against Asian-Americans, it is widely being seen as a renewed attack on affirmative-action admission policies altogether at a time when, with the confirmation of Supreme Court Justice Brett Kavanaugh, the Court now has a strengthened conservative hand.

For 40 years, the Court has depended on the swing vote of Kavanaugh’s predecessor, Anthony M. Kennedy, to maintain some version of affirmative action thinking.

This case was brought by Students for Fair Admissions, a group founded by Edward Blum, a conservative activist who has launched several lawsuits challenging affirmative action, and the initial complaint included a demand that the court declare it illegal to use race as a factorin college admissions. But, in keeping with Supreme Court precedents, Judge Allison D. Borroughs ruled for Harvard on that point. The question that remains is whether Harvard has gone beyond the Court’s narrow guidance and has shown a bias against Asian-American applicants.

A lot of people legitimately want to look at this particular debate about affirmative action as a microcosmic look at the liberal-conservative rift that is dividing our country. There are serious issues about how we as a society go about redressing generations of having discriminated against various minorities, about the best ways to promote and invite a new era of racial diversity and to get us over this squirminess about doing so openly.

To individual students who don’t get selected, the admission process is always biased.

To anyone who takes a deeper look at the issue of how to admit a finite class of students, this is also a problem that gets at the constant balancing act of creating a student body that is imaginative, creative, able to include football players, oboe players and students who can pay their way, a reflection of our more general society and one that will be able to pursue scholarship that will make our society better, however you define that.

At top private schools like Harvard, where the volume of students applying dwarf acceptances by crazy ratios, the problem is that tons of applications are deserving of admission, and no single formula will automatically produce the kind of vibrant student body they appear to want. As the admissions officer at Brown University told me years ago, they could fill their student body from three or four high schools in a single area if they wanted to do so, but they would not get the kind of diversity that makes higher education vibrant.

General college application advice columns offer students advice about taking advanced placement tests and doing volunteer projects in addition to good academics, but generally shy away from race when discussing the how-to’s. “Each college has a relatively complex admission system that guides their recruiting, admission, and enrollment objectives. Sometimes they are looking for people with specific demographics or skill sets,” reads one.

A survey among private collegesin 2012 asked75 competitive colleges and universities how they admit their students. “Most elite colleges and universities describe their admissions policies as ‘holistic,’ suggesting that they look at the totality of an applicant — grades, test scores, essays, recommendations, activities and so forth. Buta new survey of admissions officials . . . finds that there are distinct patterns, typically not known by applicants, that differentiate some holistic colleges from others. Most colleges focus entirely on academic qualifications first, and then consider other factors. But a minority of institutions focuses first on issues of “fit” between a college’s needs and an applicant’s needs… (It) results in a focus on non-academic qualities of applicants, and tends to favor those who are members of minority groups underrepresented on campus and those who can afford to pay all costs of attending,” said the study.

Among these variables for institutional “fit,” the colleges listed under-representated race/ethnicity as important in 42% of cases, “exceptional talent” at 42%, recruited athletic status 7%, likelihood of enrolling 7% and fund-raising potential 2%.
“When an applicant has an exceptional talent (e.g. music, athletics) or is part of a severely underrepresented group at the institution, the applicant may not compete for admission against the larger applicant pool. Instead, he/she may compete only among those with the same talent or within the same group,” the survey found.
Justice Sandra Day O’Connor’s 2003 opinion in the Supreme Court case upholding the consideration of race in the admissions process at the University of Michigan law school and a 2016 decision concerning the University of Texas cite the limits set out by the 1978 decision in the Bakke case: “To be narrowly tailored, a race-conscious admissions program cannot use a quota system — it cannot ‘insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.’ Instead, a university may consider race or ethnicity only as a ‘plus’ in a particular applicant’s file,’ without ‘insulat[ing] the individual from comparison with all other candidates for the available seats.”

Other cases have tested that legal flexibility in admitting minority students, though the general rule has held.

However administered, there obviously is a huge need in the country to make sure there are higher numbers of minority students and first-generation students” at elite colleges and universities, which, in turn, face criticism if those numbers are not showing up.

How this court case shapes up should be a fascinating new look where our culture finds itself.


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