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.