“If at first you don’t succeed, try, try again.” That maxim, credited to 19th century American educator Thomas H. Palmer, now seems to be the U.S. Department of Justice’s strategy with regard to affirmative action in college admission.
Earlier this month, the DOJ’s Civil Rights Division accused Yale of violating Title VI of the Civil Rights Act of 1964 by discriminating against Asian-American and White applicants in the undergraduate admissions process. The accusation arises from an investigation launched back in April of 2018.
It also comes less than a year after a U.S. District Court ruled in Harvard’s favor in a lawsuit filed by Students for Fair Admissions on similar grounds. That decision is currently under appeal, and earlier this year the DOJ filed an amicus curiae brief urging the First Circuit Court of Appeals to overrule the lower court’s decision. So is the complaint against Yale an attempt to re-litigate the Harvard case, a new foray focusing on different policies and procedures, or political theatre in support of the Trump re-election campaign?
It’s hard to know, because what is missing in the letter written by Eric Dreiband, the Assistant Attorney General for the Civil Rights Division, is evidence. Dreiband concludes that “Yale grants substantial, and often determinative, preferences based on race” and also makes the claim that “For the great majority of applicants, Asian American and White applicants have only one-tenth to one-fourth of the likelihood of admission as African American applicants with comparable academic credentials,” but offers no proof.
That lack of evidence would normally not be cause for concern in a letter of this type, but skeptics recall all too well the letter written by Dreiband’s boss, Attorney General Bill Barr, summarizing the Mueller Report before it was released. Barr’s depiction of the report turned out to have little resemblance to what the report actually said.
So what are the chances that the Yale probe is going to break new ground on the use of affirmative action in college admission? The debate over race-based preferences extends back more than 40 years, has been considered by the U.S. Supreme Court multiple times, and the issue remains sticky.
I wish there were no admission preferences, but racial preferences are the most defensible, motivated by a desire to increase educational and societal equity. If the DOJ was truly concerned about the treatment of Asian-American applicants, it would be more fruitful to go after the preferences lumped together in the Harvard case under the acronym ALDC, encompassing recruited athletes, legacies, and children of donors. Being an athletic recruit is a much more “determinative” hook than race, and the evidence in the Harvard trial suggested that the vast majority of ALDC’s are white.
In a perfect world, admission decisions would be made without regard to race or family connections or ability to pay, but we don’t live in a perfect world. A report released last week studying the effects of California Proposition 209, which outlawed racial preferences in admission to the University of California system, found that Black and Hispanic enrollment dropped throughout the system, with particularly steep declines at Berkeley and UCLA. If the events of 2020 have shown us anything, it is that America has a long way to go to overcome its sordid racial history and that the scars of racism are still raw. Do colleges and universities have a role and responsibility to address societal ills? Most of us would say yes.
While Dreiband’s letter does not provide evidence that Yale is discriminating against Asian-American and White applicants, it does provide a glimpse into some assumptions underlying the DOJ’s case.
One of its foundational assumptions is a burden of proof argument, placing the onus on Yale to prove it doesn’t discriminate rather than on the government to prove it does. Dreiband writes, “Because Yale admits that it uses race in admissions, Yale bears the burden of showing that it satisfies strict scrutiny. This means that Yale bears the burden of demonstrating that its use of race is narrowly tailored to serve a compelling interest.”
But should Yale bear that burden? Dreiband’s argument is essentially that Yale is guilty until proven innocent, and that flies in the face of the most fundamental principle of the American justice system. Beyond that, previous court cases regarding affirmative action, including most recently the Harvard case, have consistently given latitude to colleges and universities claiming that diversity is a compelling interest.
The DOJ letter argues that Yale’s diversity goals are not “sufficiently measurable,” and describes the goals as “vague, elusory, and amorphous.” I don’t know about all those adjectives, but the suggestion that Yale must state its diversity goals more precisely is a cheap attempt to draw Yale into an affirmative action Catch 22. The minute a college or university sets clear numeric goals for diversity, it has in effect established a quota, and racial quotas are prohibited by case law dating back to Bakke, the original college admission affirmative action case heard by the Supreme Court.
The DOJ states that Asian-American and White applicants having a lower “likelihood of admission” than African-American applicants with similar credentials. That assertion arises from data showing that in every year from 2000 to 2017 the percentage of students admitted from each group was lower than the percentage in the applicant pool. That statistic certainly raises questions, but is the assumption that there must be proportionality between applications and admits reasonable? I haven’t seen the data for Yale, but in the recent Harvard case the percentage of Asian-Americans admitted was lower than the percentage in the applicant pool, but exceeded the percentage in the general population. Does that make Asian-Americans at Harvard overrepresented or underrepresented?
The very use of the phrase “likelihood of admission” implies a misunderstanding of how selective admission works. It assumes that a student’s chances of admission can be calculated, which further suggests an assumption that admission is formulaic.
In an admission landscape where only 1 in 10 or 1 in 20 applicants are admitted, the great majority of qualified, even superbly qualified, applicants don’t get in. To borrow a term from logic, being superbly qualified is “necessary but not sufficient.” In my experience no student is “likely” to be admitted to a place like Yale.
So what should we make of the DOJ’s claim that race is “determinative” in admissions decisions at Yale? That word suggests that students are being admitted, or not admitted, purely because of race. Without evidence, it’s hard to evaluate that claim, but I’m guessing that Yale’s use of race is more nuanced than suggested by the DOJ.
From an ethical perspective, the issue here is whether the end justifies the means. The goal of increasing diversity and opportunity is laudable, but an ethical goal achieved without ethical means is not ethical.
That’s where the concept of “shaping the class” comes into play. Selective colleges are admitting a class rather than a collection of individuals. They use the admissions process to achieve strategic institutional goals ranging from revenue to athletic success to diversity.
The question is what “shaping” means. Is the class shaped or engineered? If putting together a class is like putting together a jigsaw puzzle, do you know you need a certain number of end pieces, do you assemble certain parts of the puzzle without knowing what the whole picture is, or do you begin with a precise picture of what the puzzle is going to look like and work backwards from there?
The DOJ’s use of the word “determinative” suggests the latter approach. But there are differences in approach even there. If a university starts with a group of candidates, any of whom will be successful, and then shapes the class from within that group, that is an acceptable approach (even if it doesn’t provide equal consideration for candidates who don’t fit into strategic categories). An admissions process that has different admission criteria for different groups of candidates does not meet the smell test.
The DOJ seems to suggest that Yale is using the second approach, but so did the lawsuit against Harvard. Are we breaking new ground, or is this, to quote Yogi Berra, “Déjà vu all over again”?