Nate Wunderli ‘22
Staff Editor
This week, UVA law students had the opportunity to learn about Students for Fair Admissions v. Harvard from the lead prosecuting attorney’s, Will Consovoy. Our own Professor George Rutherglen also offered his remarks on the case and its future.
The facts: Between 2007 and 2013, Harvard as well as several other top-tier institutions had a remarkably consistent percentage of Asian American students, usually between 15 and 18 percent. Harvard uses several categories to determine the eligibility of candidates, one of which is a personality score, in which Asians scored the lowest among the different races. Conversely, Asian Americans often had the highest academic scores and scored well in the other categories for admission. Adding to the conundrum, the personal score is decided in two ways, one of which is administered by alumni, the other by the admissions department. The alumni, who actually met with the prospective students, gave Asian Americans higher scores, on average, than their peers. The admissions department, who rarely met with any of the students, gave far lower scores for Asian Americans, leading to their overall lower personal score. As you can imagine, the lower personal scores lead many Asian Americans to be denied admission into Harvard who would otherwise be qualified.
Consovoy argued that there are only two possible explanations (besides discrimination): It is a statistical anomaly or Asian candidates really do have worse personalities than other races. The results were statistically significant, and since we all generally agree that Asians do not have worse personalities than other races, it seems that Harvard discriminates against Asian Americans. Whether this is a result of racial stereotyping, implicit bias, or something else no one can be certain of, but in Consovoy’s mind there is definitely something amiss.
Consovoy argued that a better way to ensure a diverse student body without discriminating would be to eliminate race from the equation entirely and instead focus on socio-economic status as a factor in admissions. Using this model, he says, will create a more diverse campus than affirmative action policies do. Opponents to this argue this might limit fundraising by hurting legacies and decrease the black minority representation at Harvard and other schools with similar systems (although the number of other minorities such as Hispanics likely would go way up). Interestingly, although Consovoy and Students for Fair Admissions lost in the District Court, Harvard has since upped its percentage of Asians to around 23 percent and issued warnings against labeling Asian applicants as quiet and other similar stereotypes.
Professor Rutherglen, a proponent of affirmative action, offered a different perspective in line with the District Court opinion. Professor Rutherglen expressed his concern about embedding tendencies of discrimination in our high institutions, but he also said that although the results of the personality score and its effect on admissions were statistically significant, it was not large enough of a difference to warrant a judgment against Harvard’s policies, because there are other factors at play which could account for the difference. One of these factors is that Asian American students tend to receive worse teacher and guidance counselor recommendations, which may be evidence showing Harvard does not discriminate, but other people who affect admissions have racial biases which in turn affect the final result. Another could have to do with legacies. According to Federal Judge Allison Burroughs’s ruling, of which Professor Rutherglen more or less agrees with, Harvard’s admissions policies may not be perfect, but they are very high quality in promoting excellence and diversity and certainly enough to pass Constitutional muster. He also noted that this case was lacking key witnesses for the prosecution such as Asian Americans who had the credentials but did not get in. Professor Rutherglen concluded by saying that the District Court’s opinion was quite bullet proof and will be difficult to challenge on appeal.
Ultimately, this case provides an important backdrop to rethink how we as a nation do school admission’s processes. Should we stick to affirmative action as a way to promote diversity and inclusion? Or has affirmative action run its course and the time has come to move on to something better, such as looking at socio-economic factors, as Consovoy suggests? These questions are critical to determining the future of higher education, creating equality of opportunity in our society, and are questions the Supreme Court has revisited since affirmative action was instituted about fifty years ago. So far, in cases such as Regents of the University of California v. Bakke and, more recently, in Fisher v. University of Texas, the court has upheld affirmative action. In Fisher, however, the majority opinion held that colleges must prove that race-based admissions policies are the only way to meet diversity goals. Consovoy would argue that not only is there a different way but there is a more effective way by looking at socio-economic factors. The Supreme Court has even foreshadowed that the time for affirmative action will eventually come to an end in cases such as Gratz v Bollinger and Grutter v Bollinger, where Justice Ginsburg wrote, “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.”
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