Along with its academic leadership in American higher education, the Ivy League now seems destined to find the ultimate, and therefore practically permanent, solution to the problem of racial preferences in college admission – and very likely in society as a whole. Federal proceedings are currently pending against Harvard, Yale and Princeton for illegal and unconstitutional racial discrimination.
On November 12, the Boston Court of Appeal upheld the Boston District Court’s decision to uphold Harvard’s use of racial preferences in admissions. Five years ago, Students for Fair Admissions (SFFA) filed a civil rights lawsuit against Harvard University alleging a pattern of discrimination against Asian Americans in admissions. Allegedly they are violations of the Equal Treatment Clause and Title VI of the 1964 Civil Rights Act, which bans racial discrimination by federal funding agencies like Harvard. The Trump Justice Department had intervened on the side of the SFFA.
The SFFA case, which describes the racist makeup of the recently admitted classes as “remarkably stable”, is basically almost before the law and just an appeal to common sense. For the 2014-2017 four-year period, the percentages of total admitted students who were Asian-American were 18, 18, 20, and 20 percent, respectively. There was a similar pattern for other racial groups: African Americans were enrolled at 11, 12, 10, and 11 percent, respectively, over the same four-year period. For Hispanic Americans, it was 10, 12, 11, and 11 percent. The odds for whites were 48, 49, 52 and 53 percent. Res ipsa loquitur.
In their respective 130- and 104-page decisions, however, the district and appeals courts obscure and avoid any direct consideration of the essential facts of the case. What the SFFA claims is a matter of simple statistics that anyone can understand and that in both decisions become lengthy and sophisticated statistical analyzes and “models”. This is a new type of constitutional law.
Whether Harvard uses breed in its licensing policies and practices is not an issue in this case. Because, as the appeals court found, “Harvard admits that race is taken into account”. Or, as the district court says, “the racial composition” of the pool of applicants is pursued “throughout the admission process” as a matter of policy and practice. The question is whether Harvard’s racial admissions process involves quotas or racial equalization. Both courts base their decisions on the Supreme Court’s 4-3 finding in the 2016 Fisher v University of Texas case, in which the court ruled that the use of the breed as a “plus” in admissions in Texas was closely matched and constitutionally, a legitimate educational goal that serves diversity.
The Boston District and Appeals Courts conclude that, unlike the 16 reserved seats in the 1978 Bakke case, Harvard did not have numerical race quotas for admission. Similarly, both courts continue to hold that Harvard has not dealt with racial equalization – that is, in the words of the district court, it did not base its admission decisions on “a certain percentage of a certain group based on race or ethnic origin.” In the Grutter v Bollinger (2003) case, the Court ruled that the use of a “fixed percentage” for racial balance was “manifestly unconstitutional”.
The two courts upheld Harvard’s self-affirmation, allegedly proven by court judgments by its staff and investigations by no fewer than three of its own internal committees, that neither a person nor the admissions process itself had racially discriminatory intent. (Perhaps, however, it is significant that in 2020 it became necessary for two federal courts to review Harvard and report to the nation that it does not employ racists or practice racism.)
In reviewing the four-year admission statistic, both courts found a general trend toward Asian Americans. As the district court put it, despite the “strength of Asian Americans in multiple dimensions” of the admissions process, there are “fewer admitted Asian Americans” than expected. However, the two courts invoked the statistical principle that “correlation does not prove causality” and still ruled that bias only “correlates” with inequality and does not “cause” it. It was not statistically significant. In summary, Asian Americans excel in almost every aspect of admission. Apparently, however, the resulting uniform admission quotas in 2014-2017 have no reason, as Harvard has not set an explicit race preference policy or identified racist thinkers in its staff. Regarding the use of racial alternatives as eligibility criteria (e.g., financial need, targeted recruitment, or elimination of early admissions), Harvard found that Harvard had tried these and found that they were not as effective for achieving educational diversity.
A Princeton University public self-indictment caught the attention of the U.S. Department of Education.
However, the correlation indicates causality if the relationship between two variables is sufficiently strong. Here the “dependent variable”, the actual approvals, is not even a variable, ie it has not changed in any statistically significant way over four years. That is the point of the SFFA. Harvard claims that it is a “holistic” and “individualized” approval process. By persevering long and hard, the two courts came to the conclusion that the university did this despite the non-individualized and racially structured results. At the time of this writing, SFFA has not asked the appeals court to consider en banc or appealed to the Supreme Court.
In its October complaint filed in Connecticut Federal District Court, the Department of Justice’s Civil Rights Department alleged that Yale has committed “non-standard, deliberate use of race” in its approvals “for at least 50 years.” The complaint alleges that, in violation of Title VI, the university “instructs” applicants and admissions officers and committees to “treat the race of a racially favored applicant as a positive factor” at every stage of the application process. These applicants are “mostly black and Spanish applicants”.
In the first paragraph of the complaint, the Department cites the Racial Quota case of Richmond v. Crosan (1989) for the principle that “public dollars drawn from the tax contributions of all citizens are not used to fund the evil of private prejudice. “The SFFA has filed a motion to act as an additional plaintiff in the case that essentially supports the division’s complaint. However, the SFFA goes further, and while it does not specifically ask for Grutter, for example, to be overturned, it still seeks” adopts a broader order prohibiting Yale from ever using race as an admission factor ”(emphasis added).
The complaint contains information about the breed from the approved classes in 2017 and 2018. For example, the approval rates in the eighth decile of academic assessments (between 70 and 80 percent academic) of applicants in these two years were “8.40% for white applicants ;; 6.20% for Asian applicants; 48.99% for black applicants; and 21.12% for Hispanic applicants. “For example,” Black applicants in the eighth academic decile had almost eight times the probability of being admitted as Asian applicants in the same decile. “For comparison,” The general admission rate for applicants at Yale College in the eighth academic decile was 9.88%. ” In the sixth decile of the academic index, admission rates for those two years were “6.53% for white applicants; 3.83% for Asian applicants; 27.95% for black applicants; and 18.02% for Hispanic applicants. “The general admission rate for applicants to Yale College in the sixth academic decile was 8.19%.”
In the years 2001 to 2017, Yale “dealt with racial equalization”, the complaint claims, in that the admission rate for blacks was varied by only 1 percent compared to the previous year and the admission rate for Asia by only 1.3 percent.
The Department of Justice approved the SFFA’s request for intervention and Yale has opposed it. At the time of this writing, the court has not yet ruled and Yale has been granted an extension to file its response to the complaint.
At another time that would be considered breathtaking and almost incomprehensible, another pillar of the American Academy’s Ivy League, Princeton University, made a public statement on September 2 stating, “Racism. . . persist[s] in Princeton as in our society. . . sometimes on purpose. The President of Princeton, Christopher L. Eisgruber, stated further that despite the improvement over the past few decades[r]The assumptions of the past also remain anchored in the structures of the university itself. “For example, Princeton has only one program for ‘African Studies’ while nine departments and programs are ‘organized by European languages and cultures’. Eisgruber announced several very specific “diversity” goals, including increasing the “number of permanent or permanent faculty members from underrepresented groups” by 50 percent, not in the uncertain future but “in the next five years”.
Princeton’s public self-indictment caught the attention of the U.S. Department of Education. In view of Princeton’s annual receipt of federal funding, with the associated prohibition that no receiving entity may discriminate on the basis of race, the Department has asked Princeton since 1983 to request relevant records on September 16.
Based on Princeton’s now “admitted racism,” the Education Department flatly stated it was concerned that the university’s annual “non-discrimination and equal opportunity” assurances “may have been false, misleading, and actionable significant misrepresentations.” The Department even warned Princeton that its responses are subject to federal criminal law for materially false statements on matters that come under the jurisdiction of the federal government.
For example, the Trump Justice Department has accused the elite of the elite in American higher education of using federal tax dollars to practice illegal and unconstitutional racial discrimination. Will the Biden Justice Department get through? (And why do these richest American institutions even need federal funding?) Regardless, SFFA is the original plaintiff in the Harvard case, so this case continues. And can Princeton’s dramatic public admission of racism be ignored by the Justice Department?
Regardless of their future resolution, these three cases have drawn attention to the racial weighting used by the most elite universities, re-questioning the Positive Action Act and possibly highlighting the need for the Supreme Court to formulate a better approach to race.