First Monday Musings By Dean Vik Amar: Reflections On The Harvard Admissions Trial

Even if the plaintiffs win in proving Harvard has unfairly treated Asians, the remedy they seek may be way too sweeping.

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As a law school administrator, and also as a constitutional scholar who has argued in many academic writings for the legal permissibility of some use of race-based affirmative action to redress the underrepresentation of certain ethnic groups in higher education, I have followed the Harvard undergraduate admissions trial that saw closing arguments on Friday with considerable interest.  From my vantage point as a law dean at a prominent public university, I have many reactions. In the space below, I limit myself to three observations that may help folks who have not been immersed in these issues appreciate what is going on.

First, although the case at hand was brought under Title VI of the Civil Rights Act of 1964 to challenge race-based affirmative action as applied to Asian Americans at a single private university — Harvard — the lawsuit could have big implications for many if not all private and public universities.  One reason is that Title VI, which prohibits racial discrimination by educational institutions receiving federal funds, applies to virtually every major institution of higher education in the country, because almost all of us receive federal funding of one kind or another.  Moreover, the underlying concept of impermissible racial discrimination embodied in Title VI has, in previous Supreme Court cases, been said to track the limitations imposed under the Fourteenth Amendment’s equal protection clause, which governs public institutions.  So, depending on how the Harvard case goes and especially on what remedy results from the case (see below), the Harvard lawsuit could significantly affect public universities, especially highly selective public universities — like Berkeley, Illinois, and Michigan — that, like Harvard, have a surplus of very highly academically qualified Asian-American applicants and that may or may not utilize similar admissions policies.

Second, and related, although the Harvard case is beginning to wrap up its “trial phase,” the case will likely be won or lost at the appellate levels, including perhaps the U.S. Supreme Court. Although the district court judge will make important factual findings about Harvard’s method of admitting students, questions of law (on the meaning of Title VI) and mixed questions law and fact will figure prominently in the case, and on those questions the appellate courts will exercise their own judgment, not necessarily deferring to the trial court judge.

Third, and most importantly, notwithstanding the dominant media framing, this case needn’t be understood as a broadside attack on race-based affirmative action.  The plaintiffs argue that Harvard mistreats Asian Americans by insisting they have higher educational attainment and extracurricular accomplishments than white applicants in order to be admitted.  And it seems clear that, on average, admitted Asian Americans do indeed have better high school records, standardized test scores, and extracurricular résumés than admitted whites.  Harvard counters that once you control for the fact that Asian applicants score lower on “personal” factors — such as likeability, courage, and kindness — and once you also control for the fact that preferred applicants who are athletes or children of donors, alums, and faculty are more likely to be white than Asian (for historical and other reasons), then any seeming “Asian penalty” dissolves.  Putting aside the fact that legacy admissions tend to be white today in part because there used to be overt discrimination in favor of whites at almost all institutions in past generations, I personally am somewhat skeptical of why Asian applicants should score lower on “personal” factors than other racial groups.  Harvard lawyer Seth Waxman observed during the trial that an individual’s personal factor score does not necessarily track his/her academic performance score.  Fair enough.  But why should, as a group, Asians score worse on personal factors than whites, when they seem to be drawn from the same cultural and economic environments.  “Personal” traits such as likeability, courage, kindness and being well-respected are the kinds of incredibly subjective characteristics that have long been used to discriminate against out-groups.

Yet — and here is my key point — even assuming that Harvard may be treating Asians unfairly relative to whites — none of that means this lawsuit must be understood as a fundamental attack on ALL affirmative action programs designed to increase representation of African-American and Latinx students. To be sure, the plaintiffs suing Harvard do prefer to do away with all race-based admissions practices, and the judicial relief they ask for is the elimination of non-academic criteria.  If a court granted that injunction, Harvard would no longer be able to give a plus to African-American and Latinx applicants.  But even if the plaintiffs win in proving Harvard has unfairly treated Asians, the remedy they seek may be way too sweeping. Winning on the merits doesn’t entitle you to get whatever prophylactic remedy you dream up.

In my view, this lawsuit needn’t be understood as an attack on the idea of affirmative action itself, so much as an attack on specific admissions policies (that may or may not be part of diversity-based affirmative action programs) that impose undue burdens on Asian applicants vis-à-vis white applicants. Whether or not affirmative action (i.e., the consideration of race) to increase representation of African-American, Latinx, and Native-American students is valid and worthwhile (as I believe it is), it is hard to see why Asian applicants, as a group, should lose out to white applicants with objectively less strong admissions files. Whites, after all, are not a group that has been historically (or currently) underrepresented, and there is generally no absence of a critical mass of white students at any university.  Whites need no special policies designed to help them gain access to overcome past exclusion or to ensure they will matriculate in significant numbers. So there is no reason Asian Americans should bear more of the cost of affirmative action than whites.

If the claims the Asian groups make are backed up with rigorous data (and I acknowledge I don’t fully know the answer to that yet and eagerly await the trial judge’s rulings), then it would seem that Harvard has been guilty of Asian stereotyping or, worse still, animus against Asians, neither of which should play any part in a legitimate affirmative-action regime.  But eliminating the anti-Asian bias doesn’t mean one needs to jettison all of race-based affirmative action.  Plenty of schools practice affirmative action without treating Asians worse than whites, and Harvard should too, if it doesn’t already.

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Vikram David Amar Vik AmarVikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.

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