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No ‘Asian penalty’: Harvard cleared of discrimination

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Her decision, which came nearly a year after a three-week trial that began in October 2018, closes the first round in the 2014 lawsuit that reignited debate over affirmative action.

It brings temporary relief to other universities that consider race as a way to ensure campus diversity, but it also sets the stage for a prolonged battle that some experts predict will go to the US Supreme Court.

Harvard had no immediate comment.

Students for Fair Admissions said it will appeal.

“Students for Fair Admissions is disappointed that the court has upheld Harvard’s discriminatory admissions policies,” Edward Blum, the group’s president, said in a statement.

Rowers paddle down the Charles River past the campus of Harvard University in Cambridge, Massachusetts.

Rowers paddle down the Charles River past the campus of Harvard University in Cambridge, Massachusetts. Credit:AP

“We believe that the documents, emails, data analysis and depositions SFFA presented at trial compellingly revealed Harvard’s systematic discrimination against Asian-American applicants.”

Affirmative action supporters said the decision should reassure other schools.

“Today’s ruling rightly recognises that race-conscious admissions is both lawful and indispensable for ensuring institutions are open and available to students from all walks of life, including racial minorities,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.

In the case at Harvard, the plaintiffs argued that Asian Americans were held to a higher standard in admissions, amounting to an “Asian penalty,” while the school gave preference to black and Hispanic students with poorer grades.

A 2013 internal report at Harvard found that if the school weighed applicants on academics alone, 43 per cent of the admitted class would be Asian American, while in reality, it was 19 per cent. But Harvard said the report was only meant to be “exploratory” and was based on incomplete data.

Much of the lawsuit centred¬†on a subjective “personal rating” that Harvard assigns to applicants. The suit argued that Asian Americans consistently receive lower personal ratings because of racial bias, leading many to be rejected despite strong academic records.

The group built its case around a statistical analysis of six years of Harvard admissions data. It found that Asian Americans had the lowest personal ratings and the lowest admission rates, while black and Hispanic fared far better in both areas.

Harvard countered with its own analysis finding no evidence of bias.

During the trial, the dean of admissions offered possible reasons to explain the low personal rating for Asian Americans, saying they may come with weaker letters of recommendation.

Like many elite colleges, Harvard acknowledges it considers race in admissions as a way to boost diversity but says it is only one of many factors in deciding which applicants to admit. Some states ban consideration of race in admissions.

The Supreme Court last examined affirmative action in 2016 and upheld the practice at the University of Texas.

That decision was written by Justice Anthony Kennedy, who has since retired. The two justices appointed by President Donald Trump, Neil Gorsuch and Brett Kavanaugh, are generally more conservative than Kennedy but do not have extensive records on affirmative action.

The trial offered a rare glimpse into Harvard’s secretive admissions process, including the ways it favours wealth and privilege. In a series of emails released in the case, Harvard officials openly discussed the fundraising prospects of applicants.

Harvard has called Students for Fair Admission a political group with no real interest in helping Asian Americans. Instead, its critics say, the organization’s real goal is to end affirmative action altogether. Blum is a legal strategist who has orchestrated lawsuits to ban it at other colleges.

The group says it has more than 20,000 members, including one Asian American who was unfairly rejected in 2014, but none have come forward publicly. During the trial, no students testified that they faced discrimination by Harvard.

The organization’s leaders also include Abigail Fisher, who sued the University of Texas in the case that went to the Supreme Court in 2016. Fisher said she was rejected because she is white. In a 4-3 decision, the court upheld the school’s use of race.

Supreme Court decisions have allowed colleges to consider race as long as it is “narrowly tailored” to promote diversity and is just one factor among many. Racial quotas have been ruled unconstitutional.

The Trump administration has fought affirmative action at several schools. In August 2018, the Justice Department issued a statement siding with Students for Fair Admissions, accusing Harvard of “outright racial balancing.” It is also investigating the use of race at Yale.

Students for Fair Admissions has also sued the University of North Carolina, Chapel Hill, over alleged discrimination against Asian American applicants. That suit, also filed in 2014, is still going on.

AP

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