The Harvard Affirmative Action Lawsuit: Conceiving a World without ‘Race-Conscious’ Admissions

This month marked the final arguments of the American lawsuit Students for Fair Admissions (SFFA) vs. Harvard University. Better known as ‘the Harvard Affirmative Action’ Case, SFFA argues for a ban on the historic practice of ‘race-conscious’ university admissions based on alleged discrimination against Asian American students. On one side, SFFA accuses Harvard of setting the bar higher for Asian applicants in the same way that unofficial caps were applied to Jewish students in the early 20thcentury. Harvard’s allies, for their part, accuse SFFA of allying themselves with Conservative pundits bent on restricting the rights of racial minorities. As both sides plan to appeal, the case is likely headed to the Supreme court, whose newly Conservative majority is unlikely to rule in Harvard’s favour. Although SFFA insists otherwise, experts report that Affirmative Action in higher education is at stake.

In 1978, the US Supreme Court transformed precedent when it ruled that affirmative action was in keeping with the US Constitution’s Equal Protection Clause. In that case, the Supreme court forbade racial quotas but allowed affirmative action to be used in combination with other factors. Despite this ruling and subsequent others, race-consciousness in education occupies a precarious place. Just this year, guidelines introduced under President Obama outlining the use of race in college admissions were reversed by the Trump administration as part of a nationwide trend favouring‘race-neutral’ admissions. This movement has been heavily influenced by SFFA’s champion, Edward Blum, a white Conservative with a history of work against affirmative action.

All of that said, ‘race-conscious’ policies and incendiary terms like ‘Affirmative Action’ aren’t necessarily the same. Currently, universities like Harvard claim to consider race as one of many components of a holistic assessment. Although race is taken into account, it cannot be a “decisive factor.” Applied to the case, the plaintiffs argue that Asian Americans’ race is used as a negative factor leading them to score lower on the assessment’s ‘personal’ category, as they are stereotyped as less ‘likeable,’ ‘courageous,’ or ‘genuine’ than other candidates. If SFFA’s claims are founded, Harvard’s conduct is inexcusable. However, their proposed solution would inflict severe repercussions on diversity in US schools. Already underrepresented in elite institutions, minority groups like African and Hispanic Americans would most likely bear the brunt of such measures. This is clearly demonstrated by precedent cases such as the University of Michigan, which has seen its minority enrollment plummet after banning the use of race in admissions.

During the trial, SFFA claimed that if admission to Harvard were based on academic standards alone, Asian Americans would comprise more than 50% of the student body instead of their current 24%. This is largely irrelevant, as most American schools today pride themselves on ‘holistic’ practices that assess each candidate as an individual. It’s possible, after all, that Black and Hispanic candidates who were accepted with lower standardized test scores were not ‘less qualified’ but qualified in a way that failed to meet SFFA’s definition of success. However, when the history of ‘holistic’ policies is examined it’s clear that they aren’t as benevolent as portrayed.

Harvard and schools like it have a history of cracking down on minority groups seen as doing ‘too well.’ In the 1920s, Harvard President Abbott Lawrence Lowell attempted to curb the numbers of Jewish students, who scored highly on what was at the time a single examination admission process. Lowell’s main technique was to introduce measures making the admissions process more ‘holistic’ – diverting importance from the exam. In that way, these processes were founded not on pluralism and equality but on underhanded discrimination. Though beneficial, their discriminatory use throughout history casts a shadow on today.

Image courtesy of “whoisjohngalt” via Wikimedia Images, © 2018, some rights reserved


Regarding the current case, reactions have been highly polarized. On Harvard’s side, op-eds have appeared in the Harvard Crimsonalongside major publications denouncing what is seen as a manipulation of minority concerns in order to benefit the privileged. Many see it as yet another dangerous manifestation of the ‘model minority’ structure, in which Asian Americans are stereotyped with flattering characteristics that not only further anti-Black and Hispanic sentiments but dehumanize Asians as well. ‘Model Minority’ fallacies also lend themselves to ‘racial mascotting,’ when minority groups are allied with the privileged majority while ‘turning their backs’ on fellow people of colour. ‘Investigative Comedian’ Hasan Minhaj, himself Asian-American, denounced Blum as having sought out Asian plaintiffs because he had ‘miscast his lead’ in previous, unsuccessful representations of white students claiming similar injustices. The New Yorkertook a similar angle, dismissing the case as yet another egregious attempt by US Conservatives to attack diversity and the rights of minority Americans. In this fashion, the case has become a flagship example of identity politics as members of a multicultural society pursue opportunity in an increasingly tumultuous nation.

A particularly sore point is the question of who the real beneficiaries of ‘holistic’ assessments are.  In data released by Harvard detailing admissions over the past six years, both sides of the lawsuit concluded that a sizeable preference is awarded to ‘legacy’ students; or relatives of alumni. Peter Arcidiacono, the economist retained by the SFFA team, reported that the acceptance rate for applicants with at least one alumni parent was almost five times higher than for everyone else. Furthermore, legacy students made up 29% of Harvard’s 2017 incoming class – a higher percentage than of Asian Americans or any other non-white group. Data like this suggests that if schools like Harvard are too tough on Asians whilst too easy on others, it’s not to the benefit of Blacks, Hispanics, or Indigenous Americans but to legacy students who are overwhelmingly wealthy and white. Despite a rising presence of groups like Asian Americans, white students still make up the vast majority of elite schools, with Blacks and Hispanics trailing far behind in stagnated numbers over past decades. Regardless, the ‘Harvard Not Fair’ website explicitly identifies ‘Blacks and Hispanics’ as the unfair beneficiaries of race-conscious campaigns; the undeserving villains of the same narrative that features Asian Americans as ‘The New Jews.’ Regardless of their true motives, Blum and SFFA have made their objective clear: to abolish the consideration of race in college and university admissions. This will bring nothing but further inequality than what already entrenches the United States.

As they’re conducted now, race-conscious policies are problematic. However, abolishing them is simply not the way to go. In fact, it’s impossible to abolish ‘racially conscious admissions’ because race, particularly in the United States, is everything. Without fault to any student, racial background dictates what a person’s experiences will be as they move through the world, and what opportunities will be available to them. The same holistic practices that enable applicants to highlight passions and experiences defining them as unique individuals are, more often than not, heavily linked to racial identity. An interview with a Harvard student set to testify on its behalf summed this point up masterfully: “If I interned with the NAACP, do you redact the name?”, she asked. “At what point do we redact everything from someone’s file because it is too tied to their identity?” In this fashion, even if explicit mentions of race are omitted from college applications a student who writes of their family’s immigration journey across the US’ Southern Border will just as surely be Latino as a student writing about their family’s historic Montana ranch will be white. It’s even possible to derive an applicant’s race with reasonable accuracy based on what high school they attended, because factors like those fall under the many dictated by race much more than they should be. The ongoing debate generates more questions than answers, and few suitable alternatives have appeared.

Although the case’s final arguments have been heard, the Judge has yet to issue her statement and legal experts estimate that it will arrive in coming months. Until then, or possibly after a Supreme Court ruling, it remains uncertain which side will prevail. It may very well be true that elite institutions discriminate against Asian applicants and if they do, immediate measures should be taken in pursuit of retribution and improvement for future generations. However, studying in a diverse environment is beneficial to all students.  If Harvard is truly concerned about diversity, it should take action to elevate those who struggle rather than place blame on those who excel. If there aren’t enough Black, Hispanic, and Indigenous students, schools like Harvard should take advantage of their vast donor bases, the same ones fortified and enriched by ‘legacy’ families, to lobby for increased educational funding, decreased school segregation, and realistic living wages. This way, low-income and minority students will be able to participate in the same GPA – and CV-boosting initiatives as their more advantaged peers. Elite schools could also contribute by abolishing assessments like the SAT, which have been proven time and again as inaccurate measures of ability that favour the socioeconomically advantaged and English-speaking. In that vein, they could even revamp their notoriously competitive admissions policies – less selective schools struggle much less in achieving diverse student enrollment. The subsequent results would be crucial in countering dangerous misconceptions that university admission is a genuine meritocracy – a view that ultimately harms all Americans. At this point in time, affirmative action is vital to countering structural inequality. But it is these efforts, not favoursor affirmative policies, that will enable all students to be evaluated equally for admission into elite universities in the long-term. If we want race to no longer factor in higher education, the country needs to fix itself first, and institutions like Harvard have a responsibility to be present every step of the way.

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