Harvard’s Discrimination Problem

Harvard stands accused of illegal discrimination against Asian Americans — an overrepresented minority. About a fifth of Harvard students are Asian, far outstripping Asians’ percentage of the overall population. But if the slots were given out solely on the basis of academic credentials, the number would be even higher.

This lawsuit, and several others like it, faces a long road ahead. First, judges will decide whether colleges are breaking the law as interpreted in a series of highly confusing previous Supreme Court decisions. Then, the Supreme Court itself may have an opportunity to revisit those rulings with a conservative majority. And finally, should the Court bar racial preferences at colleges that receive federal funding (which is nearly all of them), universities will likely turn to a series of dubious workarounds, forcing courts to decide how much they’d like to micromanage the admissions process.

The case that Harvard is discriminating against Asians is strong. Harvard’s Asian population fluctuated in a narrow range of about 15 to 20 percent from the early 1990s through 2013 (the year before the lawsuit was filed), even though the Asian population grew substantially in that period, whether measured as a percentage of college-age Americans, as a percentage of applicants to elite schools, or as a percentage of high scorers on the SAT. A private analysis conducted by Harvard’s own Office of Institutional Research in 2013, released publicly pursuant to the lawsuit, found that Asians were less likely to be admitted than whites with the same qualifications. Using Harvard’s admission data, Duke economist Peter Arcidiacono — an expert witness for the plaintiffs — found the same thing. This seems par for the course among highly selective colleges in general: A study of ten schools by Princeton’s Thomas Espenshade and Alexandria Walton Radford found that, at private schools in 1997, “an Asian candidate with a 1250 SAT [out of 1600] would be just as likely to be admitted” as “a white student with an SAT score of 1110.” At public schools, Espenshade and Radford measured the “Asian disadvantage” in ACT points and put it at 3.4 out of 36.

Harvard’s lawyers argue, in part, that Arcidiacono’s analysis is wrong — an idea we’ll return to. But it’s worth asking whether what the plaintiffs allege is even illegal. This is an open question because the Supreme Court’s affirmative-action jurisprudence, a line of cases stretching from 1978’s University of California v. Bakke to 2016’s Fisher v. University of Texas, is a mess.

Outside the courtroom, the case for affirmative action usually stems from the idea that it can help to counteract discrimination and make up for the legacy of past oppression. The courts, however, have always rejected this as a legal argument. Schools may not use racial preferences simply to help maltreated minority groups.