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Affirmative Action’s Last Stand? Harvard vs SFFA

John Aubrey Douglass, Senior Research Fellow and Research Professor - Public Policy and Higher Education, Center for Studies in Higher Education | February 11, 2019

Ever since the US Supreme Court’s 1978 Bakke vs the UC Board of Regents decision, the appropriate role of race and ethnicity as a factor in admissions to highly selective universities has been the focus of a series of legal challenges. The list is long. Those that have reached the Supreme Court include Hopwood v Texas (1996), Grutter v Bollinger (2003), and most recently Fisher v University of Texas (2016). Currently, Students for Fair Admission (SFFA) v. Harvard has generated national headlines with the charge of systematic discrimination of Asian-American applicants, a case that many believe will wind its way to the Supreme Court.

Adding to the fray, a UCLA professor recently sued the University of California’s Board of Regents for a similar charge of discrimination against Asian-Americans applying to the University of California’s (UC) most selective campuses, requesting access to data to run his own analysis. The Harvard case has a similar contour, with the lawsuit being filed by a conservative political action group (SFFA) and revolving around a similar and successful request for admissions data. A large portion of the trial, now recently completed and awaiting a decision, focused on a debate over the meaning of the data and the analysis by the plaintiffs.

In a recent paper published by the Center for Studies in Higher Education, Berkeley vs the SAT, I recount a similar 2004 charge of discrimination against Asian-American applicants to Berkeley that involved a Regent who also pursued his own analysis of admissions data. Many will recall yet another charge of discrimination in Berkeley’s admissions process back in the 1980s.

As in these earlier and contemporary cases, the crux of such charges: that on average, one racial or ethnic group is more “qualified” than other groups, often underrepresented minorities, yet they suffer lower admissions rates. For anti-affirmative action advocates, standardized test scores are seen as the gold standard of academic ability since they are a universal measure, unlike grades that are local assessments of abilities and subject to grade inflation. Anti-affirmative action advocates largely see admissions to a university with highly selective admissions as a reward based on test scores; they are not terribly concerned with the predictive validity of other admissions criteria.

However, test scores, and specifically the SAT, have historically proven only weak indicators of performance in tertiary institutions with highly selective admissions. Test scores may be considered “valid” indicators insofar as they do add a statistically significant increment to the prediction. The problem is that the increment is so small.

Test scores also are not necessarily good measures for predicting the future engagement of students in the wide range of experiences and opportunities offered by major universities – including public service, undergraduate research, and co-curricular activities. And research shows that tests like the SAT have a growing correlation with race, adding little to the large body of applicant data now employed in, for example, UC’s holistic approach to admissions.

Just as importantly, universities, particular public, have a responsibility to serve as paths for socioeconomic mobility and for shaping a more equitable society. This was the vision of the great land-grant universities created in the mid-1800s, including Berkeley, and it remains salient and indeed more important than ever. Hence, the role of public universities is to balance the aspirations of the individual with its larger role in an America that is increasingly racially and ethnically diverse, and that has tragic levels of poverty and income inequality. The concept of a university admitting and enrolling a “class” reflective of society, and the variety of human talents and capabilities, provides an important counterpoint to the idea of access as simply a reward for achieving a high-test score.

The politicization of admissions is not a terribly new phenomenon. Indeed, it is an inevitable outcome of the increasing demand for a scarce public good. And universities, such as California’s land-grant university, have in the past made strategic mistakes highlighted by an over-dependence on race as a factor in admissions. As a result, affirmative action became less politically viable, harder to defend, and more open to attack.

But the polarizing nature of the debates over affirmative action, past and future, is not the singular fault of good policy aims implemented badly. And such debates are not fueled simply by philosophical differences over how to address complex social problems. There are also the behaviors and interests of individuals and political action groups who hold or seek significant levels of political power—whether it be a coordinated group of lawmakers, racial interest groups, or a regent. Public universities, and in particular highly selective institutions, not only must distribute an increasingly scarce resource; they must also deal with a wider group of real and perceived stakeholders.

The complaints of the plaintiffs in the current Student for Fair Admission (SFFA) v. Harvard case relate to a larger problem: skepticism about the honesty, integrity, and legality of higher education institutions setting their own admission policies. Historically, court cases regarding access to higher education, including anti-affirmative action advocacy groups but also by the NAACP, focused their efforts on public institutions that are subject to public accountability.

In the past, private institutions have been largely exempted from debates over the rightful use of affirmative action, and race-based admissions. Legally, they are private corporations, granted charters by their state government and not subject to the same public purview and control faced by public universities. Hence, whether it was Stanford or Harvard or smaller selective private colleges, they have been largely left alone to set their admissions policies and practices. And their admission processes have been a black box that includes favoritism towards legacy admissions.  But perhaps no more? SFFA v. Harvard is unprecedented in that Harvard, a private corporation, is being viewed as a private club that racially-discriminates, and it is illegal for private clubs to discriminate on race. As a result, its admissions processes are being exposed.

If the courts follow precedent, they will defer to public and private universities in their consideration of race as long as it is one among a number of criteria for admission – a precedent set by Bakke. The courts have also consistently deferred to universities on how they make their admission decisions, unless there is clear evidence of overt discrimination.

Writing the majority opinion in the 2003 Grutter v. Bollinger case, Justice Sandra Day O’Connor supported two justifications similar to those offered twenty-six years earlier by Justice Lewis F. Powell in the 1978 Bakke case. First, O’Connor recognized the “principle of student body diversity as a compelling state interest” and that universities “can justify using race in university admissions” largely for their role in creating a more equitable society. Second, O’Conner focused on the “constitutional dimension” of institutional autonomy and, specifically, the proper authority of universities in the realm of admissions. In her written opinion, she cited Powell: “The freedom of a university to make its own judgments as to education includes the selection of its student body.” O’Connor also cited Justice Felix Frankfurter’s 1957 opinion identifying the selection of students as one of four freedoms essential for the academic enterprise, the others being “who may teach, what may be taught, how it should be taught.”

Yet we may be entering a different political and legal era. In the Harvard case, Students for Fair Admissions, an organization founded by anti-affirmative action advocate and financier Edward Blum, filed a suit in a federal district court against Harvard charging a pattern of discrimination against high-achieving Asian-American applicants. A court order then required Harvard to provide an unprecedented level of admissions data to the plaintiffs. The SFFA generated analysis, via a contracted study by Duke economist Peter S. Arcidiacono, claiming it demonstrated systematic discrimination against Asian-American students – who act as a surrogate group to attack affirmative action.

Harvard then commissioned an analysis provided by David Card at UC Berkeley stating that the SFFA analysis was deeply flawed in part because it did not include “personal information” (including educational background of parents, co-curricular participation, special talents, and legacy and donner recommendations).

The SFFA lawyers claim that Harvard should rely solely on “objective” criteria in making admissions decisions — specifically SAT scores and GPAs. Arcidiacono’s pre-trial report stated that, “by controlling for test scores, one can show that Asian-Americans applicants were being held to a higher standard than other applicants, all else equal.” As is the case at Berkeley and other highly selective universities and colleges, Harvard must choose among many qualified students, most with very high-test scores. Harvard claims it needs multiple sources of information to make its admissions decisions; the SFFA claims that the addition of “personal information” builds in biases to purposefully discriminate against Asian-Americans.

Will the federal district court defer to legal precedent set out by O’Conner and others? No matter what the decision is, it will be appealed and will likely make its way to the Supreme Court. Blum has provided financial support previously for a long list of legal suits challenging affirmative action, including the 2016 Fisher v University of Texas case. The goal: that a now more conservative court than in O’Conner’s day will render a final blow.