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Justices will hear a challenge to affirmative action that isn’t really about affirmative action

If the Supreme Court finds that Harvard discriminates against Asian Americans, the remedy doesn’t require dismantling affirmative action

- February 21, 2022

The latest challenge to affirmative action — now headed to the Supreme Court — has a potent twist. Students for Fair Admissions (SFFA) argues that Harvard University imposed an illegal “Asian penalty” to reduce the number of Asian Americans on campus. It claims that this purported penalty, together with allegations of illicit racial balancing, shows that Harvard and other universities can’t be trusted to make lawful admissions decisions. SFFA consequently demands the court eliminate affirmative action altogether — not just at Harvard, but at all universities nationwide.

This bid seemingly pits one minority group against other minority groups. But SFFA has strategically combined two conceptually and legally distinct issues: an alleged Asian penalty and affirmative action writ large. If Harvard indeed discriminates against Asian Americans, that wrong could in theory be righted without tossing out affirmative action.

The case is rife with legal and statistical machinations that we and our students have been grappling with in our courses at Harvard and Stanford University, where we teach. It also provides a prime example of two distinct theories of discrimination — disparate treatment and disparate impact — that underpin debates in education, criminal justice and beyond.

SFFA v. Harvard by the numbers

The numbers are largely undisputed. Among applicants to the Harvard class of 2014 through the class of 2019, Asian American students had, on average, stronger academic and extracurricular track records than White applicants. But whereas 80 out of every 1,000 White applicants were admitted, only 59 out of every 1,000 Asian American applicants were admitted — 26 percent fewer.

Part of this gap stems from higher admissions rates for athletes and children of alumni — so-called legacy candidates — who are disproportionately White. The remainder is explained by Harvard’s consideration of factors such as geography, parental occupation and, most controversially, subjective assessments of “personal qualities” such as integrity and kindness, on which Harvard staff rated Asian Americans lower than Whites on average.

Among the most academically prepared applicants, Harvard gave 31 percent of White students a top “personal” score but gave similarly high marks to only 23 percent of Asian American students. Harvard’s assertion that personal ratings are an unbiased measure of character requires accepting the idea that Asian American applicants have, on average, lower “personal qualities” than White applicants — redolent of corrosive stereotypes often applied to racial and ethnic minorities.

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Allegations of disparate treatment

Under SFFA’s claims, Harvard’s use of personal ratings would be illegal only if Harvard implemented them with an intent to admit fewer Asian Americans, a possibility the university vehemently denies. This type of discrimination — which legal scholars call “disparate treatment — is what many people probably think of when they hear the word “bias,” with decisions designed to harm individuals based on their race, gender or other legally protected traits.

In orchestra auditions, candidates often play behind a screen to limit disparate treatment in evaluations. In our own work, to reduce disparate treatment in prosecutors’ charging decisions, we built a “blind charging” algorithm that automatically masks race-related information from police reports. The tool is now used by district attorneys across California. In other research, we found that Black drivers make up a smaller share of drivers stopped after sunset, when a “veil of darkness” masks drivers’ race, suggesting disparate treatment in officer decisions.

Disparate impact: Another form of discrimination

Disparate treatment, while important, is only one form of bias. Another legal approach examines what is called “disparate impact.” This type of discrimination occurs if a policy imposes disproportionate burdens on marginalized groups without sound justification. Unlike disparate treatment, disparate impact need not involve discriminatory intent. U.S. law prohibits policies with a discriminatory impact in certain important contexts, including employment, lending and housing. But even in domains not covered by disparate impact laws, this theory of discrimination offers a useful lens for identifying policies that harm marginalized groups.

For instance, in Nashville, the police department routinely stopped drivers for non-moving violations, such as broken taillights and tinted windows. We found that this policy disproportionately affected Black residents, who were nearly 70 percent more likely to be stopped for non-moving violations than White residents. Nashville police touted this practice as a crime-fighting measure, but our analysis showed that it had little impact on burglary, robbery and other serious crimes.

We concluded the department’s actions imposed a discriminatory disparate impact on Black residents — disproportionately penalizing them with no clear crime fighting benefit — regardless of whether individual officers intended to discriminate. These findings, along with a sustained campaign by community groups, led Nashville to curb traffic stops by nearly 80 percent, with little resulting change in crime rates.

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Disparate impact in college admissions

The Harvard case raises similar concerns about disparate impact. If the university’s stated preferences for legacy candidates and exceptional “character” don’t promote legitimate educational aims, the burden those criteria place on Asian American students could be deemed discriminatory, even if they weren’t designed to exclude Asian Americans.

Disparate impact claims in higher education are rare, and the SFFA lawsuit focuses exclusively on disparate treatment. But that may change. Under the Obama administration, both the Education and Justice departments appeared willing to investigate allegations of disparate impact in at least some educational contexts. Those efforts stalled under the Trump administration, but the Biden administration appears interested again.

Whether such practices risk legal action, universities that want equitable admissions policies might wish to consider broadening their definitions of discrimination to include disparate impact.

The future of affirmative action

The case raises legitimate questions about whether Asian Americans face barriers when applying to Harvard — and by extension, to other universities with similar practices. If Harvard does impose an “Asian penalty” — either intentionally or inadvertently — that could be rectified without dismantling affirmative action. For instance, Harvard could restructure how it uses personal scores or eliminate them entirely.

But SFFA and Harvard have repeatedly made the case a referendum on affirmative action. SFFA has invited the conservative justices on the Supreme Court to end a policy it disfavors. Harvard appears to be betting the court wouldn’t so drastically reshape educational policy. The result could affect students for generations.

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Sharad Goel (@5harad) is a professor of public policy at Harvard Kennedy School.

Julian Nyarko (@JulianNyarko) is an assistant professor of law at Stanford Law School.