Kudos to the Department of Justice for the amicus brief it filed last week on behalf of the Asian-American plaintiffs in their lawsuit against Harvard University for its use of racial preferences in student admissions. Bear with me while I give a little more detail on why the brief deserves special praise.
The law requires that, when race is considered in student admissions — as Harvard admits it is here — the school do so only in a way that passes the two prongs of “strict scrutiny”; that is, that the discrimination be “narrowly tailored” to a “compelling interest.” Alas, in deciding the 2003 case Grutter v. Bollinger, the Supreme Court recognized the “educational benefits” of a racially diverse student body as such a compelling interest.
The Harvard case is now before the U.S. Court of Appeals for the First Circuit, but will ultimately go to the U.S. Supreme Court. When that happens, probably next year some time, it is critically important that the Court revisit its 2003 ruling that “diversity” justifies discrimination. The Justice Department deserves special praise, therefore, for challenging Harvard on both prongs of strict scrutiny, since this helps make it more likely that the Supreme Court will do just that.
For the same reason, by the way, praise is due for the amicus brief that the Pacific Legal Foundation also filed on Tuesday (one that, ahem, was joined by our organization, the Center for Equal Opportunity).
For the balance of this email, I’ll set out some key excerpts from CEO’s amicus brief. I should note at the outset that, among other things, the brief cites two studies relating to Harvard published recently by CEO, both authored by our research fellow, Althea Nagai: Harvard Investigates Harvard: “Does the Admissions Process Disadvantage Asians? (Aug. 30, 2018) and Too Many Asian Americans: Affirmative Discrimination in Elite College Admissions (May 22, 2018).
Enjoy!
IDENTITY AND INTEREST OF AMICI CURIAE
The Center for Equal Opportunity (CEO) is a research and education organization formed pursuant to Section 501(c)(3) of the Internal Revenue Code and devoted to issues of race and ethnicity. Its fundamental vision is straightforward: America has always been a multiethnic and multiracial nation, and it is becoming even more so. This makes it imperative that our national policies do not divide our people according to skin color and national origin. Rather, these policies should emphasize and nurture the principles that unify us. E pluribus unum: out of many, one. CEO supports colorblind policies and seeks to block the expansion of racial preferences in all areas. CEO has participated as amicus curiae in numerous cases relevant to the analysis of this case. See Ricci v. DeStefano, 557 U.S. 557 (2009); Parents Involved, 551 U.S. 701; Grutter v. Bollinger, 539 U.S. 306 (2003).
SUMMARY OF ARGUMENT
The need for racial classifications is unclear, but “the costs are undeniable.” Parents Involved, 551 U.S. at 745 (plurality opinion). Race-based admissions policies do not treat people as individuals, but “as simply components of a racial . . . class.” Miller v. Johnson, 515 U.S. 900, 911 (1995) (internal quotation marks and citations omitted).
Racial classifications are inherently arbitrary. Like many universities, Harvard uses broad racial categories such as African-American, Hispanic, and Asian. ADD 103. But there is nothing intrinsic in these categories to assure a commonality of experience. The term “Hispanic,” for instance, does not describe a common background, designate a common language, or even describe gross physical appearance. See Peter Wood, Diversity: The Invention of a Concept 25 (2003). The same can be said of the term “Asian,” which make up roughly 60 percent of the world’s population and encompasses people of Chinese, Indian, Filipino, and many more backgrounds. See United Nations, Population.
Harvard’s use of racial classifications perpetuates harmful stereotypes. Asian applicants were described as lacking in leadership, grit, and other factors that contributes to their low “personal ratings.” … (“Although [Harvard’s] reading procedures have not historically provided detailed guidance on what qualities should be considered in assigning a personal rating, relevant qualities might include integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit.”). These stereotypes flow beyond campus boundaries. For decades, college admissions guides like the Princeton Review have taken Harvard’s race-based admissions policies into account in its guidance to aspiring high school students. One guide advises Asian students to “get involved in activities other than math club, chess club, and computer club.” Princeton Review, Cracking College Admissions, at 175 (2d ed. 2004). It implores Asian students to avoid telling schools their race, but encourages non-Asian students with “Asian-sounding surname[s]” to “report [their] race and attach a photograph.” Id. In all, Harvard’s race-based admissions policy “can only exacerbate rather than reduce racial prejudice,” and “delay the time when race will become [ ] truly irrelevant.” Adarand, 515 U.S. at 229 (quoting Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (Stevens, J., dissenting)).
Harvard’s discrimination against Asian American applicants prolongs a long history of discrimination against Asian Americans in the United States. Cases dating back to the 19th century have memorialized centuries of discrimination against Asian Americans. People v. Hall, 4 Cal. 399, 404-05 (Cal. 1854). Those cases were animated by the same kind of “unthinking stereotypes” that are prevalent today at Harvard.
Harvard has failed to meet its high burden to demonstrate a compelling interest in discriminating on the basis of race. Because Harvard expressly treats applicants differently based on their race, its admissions policy “must be analyzed by a reviewing court under strict scrutiny.” Adarand, 515 U.S. at 227. A court must apply this searching standard of review to “‘smoke out’ illegitimate uses of race by assuring that [Harvard] is pursuing a goal important enough to warrant use of a highly suspect tool.” Croson, 488 U.S. at 493. To this end, the court conducts a thorough “examination of the factual basis” for the University’s use of race, “and the nexus between its scope and that factual basis.” Id. at 494-95. Although the Supreme Court has held that some deference to a university’s “educational judgment that [ ] diversity is essential to its educational mission” is proper, Grutter, 539 U.S. at 328, it has never endorsed unqualified judicial deference to a university’s assertion of a compelling interest in diversity. Here, the record indicates that Harvard failed to give “serious consideration to all the ways an applicant might contribute to a diverse educational environment,” id. at 337, and is instead using race as a factor “for its own sake.” Bakke, 438 U.S. at 307 (Powell, J.).
ARGUMENT
I
The Use of Racial Classifications in College Admissions Impose Undeniable Costs on Students
A. Racial Classifications Are Inherently Arbitrary
…
These racial definitions are crude and arbitrary. Like many universities, Harvard classifies students in broad racial groups such as white, Asian, Hispanic, and African American. APP 103. Yet members of the same racial group may have vastly different backgrounds, skills, and aspirations. The use of race in admissions policies presents the risk that Harvard evaluates applicants not as individuals but as members of a broadly defined racial group. See Miller, 515 U.S. at 911-12 (“Race-based assignments embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution.”) (internal citation and quotation marks omitted).
These broad racial categories are untenable, because there is nothing intrinsic in these categories that assures a commonality of experience. See Wood, supra, at 25. As one scholar explained, contemporary group classifications such as “black,” “Asian,” and “Hispanic” fail to identify any common factor inherent to individuals within those groups. Id. …
… It is indeed a “sordid business, this divvying us by race.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part and dissenting in part).
B. Harvard’s Use of Racial Classifications in
Admissions Perpetuates Harmful Stereotypes
“Race-based assignments embody stereotypes that treat individuals as the product of their race.” Miller, 515 U.S. at 912 (citation omitted). This litigation is case in point. Harvard’s admission officials assigned Asian American applicants the lowest personal ratings—a subjective assessment of whether the applicant has character traits such as “helpfulness, courage, [and] kindness,” or is an “attractive person to be with,” or is a “widely respected” person with good “human qualities.” SFFA’s Statement of Material Facts ¶ 90. Yet alumni interviewers—who actually meet the students—assigned the same applicants significantly higher personal ratings than the admissions officers. Id. ¶ 616. This is hardly surprising. Asian American applicants to Harvard received not just stronger academic scores, but also had higher extracurricular ratings than the rest of the applicant pool. … Yet Harvard’s race-based admissions policies has entrenched the incorrect stereotype that Asian American students are one-dimensional students lacking in personal attributes such as helpfulness, courage, and kindness. As one Harvard admissions officer noted in an Asian-American applicant’s file: “quiet and of course wants to be a doctor.”
…
The principle of equal protection before the law embodies the promise that race will not stand in the way between an individual and her dreams. Yet Asian American students who want to attend Harvard are incentivized to forgo a career in medicine, math, and sciences—all because there happens to be “too many “Asians” in those programs. This leads to devastating consequences. As one Chinese-American student at Yale recounted, “I quit piano, viewing the instrument as a totem of my race’s overeager striving in America. I opted to spend much of my time writing plays and film reviews—pursuits I genuinely did find rewarding but which I also chose so I wouldn’t be pigeonholed.” Althea Nagai, Too Many Asian Americans: Affirmative Discrimination in Elite College Admissions, Center for Equal Opportunity, May 22, 2018.
C. Harvard’s Admissions Policy Exacerbates
Past Discrimination Against Asians
Harvard’s race-based admissions policy exacerbates a long history of discrimination against Asians. American history is replete with laws banning the entry of immigrants of Asian descent. See, e.g., Chinese Exclusion Act, Law of May 6, 1882, Ch. 126, 22 Stat. 58 (repealed 1943) (banning Chinese immigration); Immigration Act of 1924, Ch. 190, 43 Stat. 153 (repealed 1952) (banning Japanese immigration); Exec. Order No. 589 (1907) (banning Japanese and Korean immigration). Alien land laws in various states restricted the ability of Asian immigrants to own property. See, e.g., 1913 Cal. Stat. 113. And the separate-but-equal doctrine routinely applied to Asian students, who were forbidden from going to “white” schools. Gong Lum v. Rice, 275 U.S. 78, 81-82 (1927).
…
Harvard has failed to meet its burden to demonstrate a compelling interest to justify its use of race
Judicial deference to a university’s proffered interests in diversity is incompatible with strict scrutiny. Even though the Supreme Court has allowed some deference to a university’s “judgment that [ ] diversity is essential to its educational mission,” Grutter, 539 U.S. at 328, it has never accepted unqualified deference to a university’s assertion of a compelling interest in diversity.
Instead, Supreme Court precedent instructs courts to make detailed findings to ensure that any interest asserted to justify the use of race is compelling enough to do so. When the government seeks to remedy past racial discrimination, for instance, it must prove that there is a “strong basis in evidence” that the remedial actions are necessary. Croson, 488 U.S. at 500. This requires “[p]roper findings” that “are necessary to define both the scope of the injury and the extent of the remedy necessary to cure its effects.” Id. at 510.
This rule is no different in the context of higher education. There, too, courts “should ensure that there is a reasoned, principled explanation for the academic decision” that its interest in diversity is compelling enough to sustain discrimination on the basis of race. Fisher I, 570 U.S. at 310. A university cannot simply point to Grutter, but must show why there are compelling educational benefits in its own instance. After all, what is true of a state law school more than 20 years ago may not be true of, say, a private university’s graduate chemistry program in 2020.
Just as the Equal Protection Clause requires “judicial, legislative, or administrative findings of constitutional or statutory violations necessary to justify remedial racial classification[s]” Bakke, 438 U.S. at 309, Harvard must proffer compelling evidence that its interest in diversity is necessary to justify its racial classifications in admissions. Yet a “strong basis in evidence” that Harvard’s interest in diversity is compelling enough to justify its use of racial classifications is plainly lacking here.
For instance, Harvard bears the burden of demonstrating that it gives “serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Grutter, 539 U.S. at 337. The record, however, reflects Harvard’s intense focus on racial diversity. Indeed, the district court acknowledged that Harvard tracked the racial composition of the admitted class to ensure that racial representation did not differ dramatically from year-to-year. …
Empirical analysis from other universities further undercut Harvard’s assertions. Professor Richard Sander’s analysis of the publicly available data, which covers over 100,000 applicants to University of California-Los Angeles over three years, shows that there is essentially no correlation between race and “personal achievement,” as measured by admissions file readers. See Peter Arcidiacono et al., A Conversation on the Nature, Effects, and Future of Affirmative Action in Higher Education Admissions, 17 U. Pa. J. Const. L. 683, 695 (Feb. 2015). Instead, the only strong predictor of personal-achievement scores in the data was academic achievement. Id.
