Affirmative Action for Lax Bros.

AuthorOh, Reginald


On October 31, 2022, the U.S. Supreme Court will hear cases alleging that Harvard University and the University of North Carolina at Chapel Hill violated Title VI of the Civil Rights Act by discriminating against Asian American applicants in their admissions processes.

The Harvard litigation is the more prominent of the two cases, and the Court, when it renders a decision sometime next year, may very well rule that the nation's oldest university discriminates against Asian American applicants, and use that as a reason to ban race-conscious affirmative action in higher education. That would mean the Court would overrule Grutter v. Bollinger, a 2003 decision involving the University of Michigan Law School in which the Court upheld the use of race as a plus factor in admitting members of underrepresented racial groups.

The plaintiff in the Harvard and UNC lawsuits, Students for Fair Admissions, and the conservative activists behind them say the case pits Asian Americans against other people of color--African Americans, Latinos, and Native Americans. They claim that the only way to protect Asian Americans from unfair discrimination is to stop permitting race to be a plus factor for underrepresented racial groups. However, affirmative action has little to do with the central claims of discrimination--that Harvard, in a racially biased manner, rejects Asian American applicants for lacking the requisite character and family pedigree to become a Harvard student, primarily to the benefit of lesser-qualified white applicants. That's not an affirmative action problem. That's a white supremacy problem.

Yet, somehow, the problem of discrimination favoring whites to the detriment of Asian Americans has been shoe-homed into an illogical legal theory ostensibly blaming affirmative action for that discrimination. When Harvard's treatment of Asian Americans is analyzed under the appropriate legal theory, the proper remedy becomes clear: End racial preferences for whites, rather than abolish affirmative action for Black, Latino, and Native American students.

Has Harvard been giving preferential treatment to white applicants and admitting them over more qualified Asian Americans? The answer is yes, based on a statistical analysis of Harvard admissions data from 2014 to 2019 conducted by the social scientists Peter Arcidiacono of Duke University, Josh Kinsler of the University of Georgia, and Tyler Ransom of the University of Oklahoma. (Arcidiacono served as an expert witness for the plaintiff in the Harvard lawsuit.) The researchers examined how Harvard treated Asian American applicants in comparison to similarly situated white applicants. Their study's primary focus wasn't on how Asian Americans fared relative to Black and Latino students. No one disputes that Black and Latino students with lower qualifications are treated more favorably than Asian Americans and whites with higher qualifications by considering race as a plus factor. The unknown question that the study focused on was whether Asian Americans were held to a higher standard than whites.

Bottom line: The researchers found that Harvard consistently admitted whites over Asian Americans who had more robust academic and nonacademic qualifications. Starting with the differences in academic qualifications, as a group, Asian American applicants to Harvard are significantly more academically talented than white applicants. From 2014 to 2019, there were 42.5 percent more white than Asian American applicants. However, in the top 10 percent of applicants based on grades and test scores, there were 45.6 percent more Asian American than white applicants (7,225 versus 4,963). If Harvard had only used academic qualifications to admit whites and Asian Americans, the number of Asian Americans admitted would have increased by 40 percent.

The racial bias in Harvard's admissions process is starker when comparing white and Asian American applicants with similar academic credentials. Arcidiacono separated applicants into academic index deciles ranging from 1 to...

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