In Students for Fair Admissions v. President and Fellows of Harvard College, petitioning Asian-American students argued that Harvard’s undergraduate admissions policies actively discriminated against them on the basis of race in violation of Title VI of the Civil Rights Act of 1964. The District Court and the Court of Appeals for the First Circuit disagreed, triggering SFFA’s pending petition to the Supreme Court for certiorari. If the Court accepts cert, the case will present it with the chance to address the legality of race-based admissions policies for the fifth time in as many decades.
Should and will the Court take the case? Is this an opportunity for a long-overdue correction of judicial error or a project doomed to fail? And what exactly does the trove of information from the record below mean for the Court’s decision, for admissions departments elsewhere, and for applicants?
- Anna Ivey, Founder, Anna Ivey Consulting
- Cory Liu, Partner, Ashcroft Law Firm
- Moderator: Dan Morenoff, Executive Director, American Civil Rights Project
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Evelyn Hildebrand: Welcome to The Federalist Society’s virtual event. This afternoon, May 26, we discuss Student’s for Fair Admission v. President and Fellows of Harvard College. My name is Evelyn Hildebrand, and I’m an associate director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are fortunate to have with us a very distinguished panel. Mr. Dan Morenoff will be moderating this afternoon’s discussion, and he will introduce our panelists. Dan is the Executive Director of the American Civil Rights Project, and he is a member of The Federalist Society’s Civil Rights Practice Group, and we’re very pleased that he’s agreed to moderate this afternoon’s discussion.
After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for that portion of the event. If you do you have a question, please submit it at any time using the chat or the Q&A function at the bottom of your screen. With that, thank you for being with us today. Dan, the floor is yours.
Dan Morenoff: Thank you, Evelyn. And, yeah, on behalf of The Federalist Society, let me welcome all of our guests. Folks, we’re glad to have you here, even those of you who are actually watching the recording subsequently and aren’t even virtually with us right now.
As Evelyn mentioned, we are here to discuss Student’s for Fair Admission v. President and Fellows of Harvard College, specifically SFFA’s pending petition for cert at the Supreme Court in that case. As of this week, I understand the petition is fully briefed and that the justices should have received their copies of that briefing yesterday for consideration at their June conferences.
Our audience is not here to hear me talk about any of that, though, so let me get to introducing our esteemed guests. On the one hand, we have Anna Ivey. Anna is a graduate of Columbia College and the University of Chicago Law School, who studied at Cambridge—the British one.
She is a one-time Dean of Admissions at the University of Chicago Law school, founder of Anna Ivey Consulting, which helps applicants with their applications to selective schools. She literally wrote the book on law school applications and published another on how to prepare a standout college application.
She is joined by Cory Liu, a graduate of the University of Chicago as an undergrad and of Harvard Law School. Mr. Liu clerked for Court of Appeals’ Judges Andrew Oldham at the Fifth Circuit, and Danny Boggs at the Sixth. He also worked for Judge Don Willett back when he was Justice Willett, the “Tweeter Laureate” of the Supreme Court of Texas.
He is a former assistant general counsel to Texas Governor Gregg Abott, now a partner in Austin at the Ashcroft Law Firm. Mr. Liu was also the filer of an amicus brief in SFFA v. Harvard on behalf of David Bernstein, a professor at George Mason Scalia Law School and author of The Modern American Law of Race.
We know you both have a great deal to say about this case, and before letting you do so, I’ll preempt just long enough to thank you in advance for taking the time to visit with us today and share your thoughts. With all of that out of the way, given your backgrounds on these matters, I’m going to start things up slightly differently, than maybe is the norm, by asking you, Anna, if you could explain to us what it is that Harvard is actually doing or, at least, what it is that Harvard says that Harvard is doing in its admissions policies and in its use of race.
And once you’ve had the chance to do so, then I’m going to ask you, Cory, to explain the case presented by SFFA’s petition for cert. I expect that both of those will probably go about 10 minutes, and then we’ll be able to allow each of you to respond to the other, potentially even to discuss the issues raised more humanly. Enough of my yacking. It is time to pass the mic to Anna.
Anna Ivey: Thank you for having me, Dan. I love that we have this UChicago trifecta right here. Go UChicago. I’m so excited to be here for this important conversation and to learn from the two of you and from our audience as well. And Cory, let me just say from the outside, I know that this case is personal to you in a way that I’m a step removed, and so I’m mindful of that. I get to sit here without direct involvement, so I’m very eager to hear your perspective on things.
I’m here today to talk mainly about the admissions implications of the Harvard case. While I’m a lawyer by training, I am not an appellate litigator and have never played one on TV. I should also note that I certainly don’t speak for Harvard or for Harvard admissions, which is fine because they have very capable spokespeople. But I have been in the universe of higher-ed admissions for quite some time, and so naturally, I’ve been following the lawsuits with some interest.
I’d like to start with a short discussion of the status quo so that we can appreciate, and the audience can appreciate, what the impact might be if the Supreme Court ends up granting cert and ruling against the current practices. When we talk about affirmative action at highly selective colleges like Harvard, they tend to converge around the same practice.
They are race conscious in their so-called holistic evaluation of applicants, among many other factors that they take into consideration. They do that in pursuit of a diverse student body, which Harvard and many other higher-ed institutions in the U.S. consider fundamental to their institutional and educational missions. The word holistic is admission-speak and a bit “inside baseball.” It also does a lot of heavy lifting in this legal context, and one could even argue that it gives cover in a way that it shouldn't. So that’ll be a very interesting conversation.
The first thing to understand about holistic admissions is that it is distinguished from other admissions’ models, particularly, the one that is typically called credentials-based in the admissions world. Most countries follow a credentials-based model. If you want to go to university in Germany or France, you take the Abitur or the Bach at the end of high school, and that largely determines where you go to university and what you are eligible to study there.
Admissions officers, or officials, really, they do not try to peer into applicants’ souls through things like personal essays and interviews. Some universities in the U.K. are closer to the American model, but it’s fair to generalize by saying that the American holistic model is mostly a model unto itself. That’s the universe of selective colleges in the U.S., meaning it has a competitive process for a spot where demand for those spots exceeds the spots available. And there are things taken into consideration other than, say, just hard numbers or hard credentials.
We do have credentials-based admissions in the U.S. It tends to be the non-selective colleges and community colleges, where if you have a certain minimum GPA, for example, from high school, you’re deemed admissible, so I don’t want to suggest that doesn’t exist here. It does. We’re focusing on a very small universe of highly selective colleges like Harvard. But I want to acknowledge that that’s not most students in the United States, and it’s not most colleges in the United States that have quite the system.
I’ll start out by saying that Harvard turns away a lot of applicants with perfect GPAs, a lot of applicants with perfect test scores. When your acceptance rate is five percent or even less, a lot of hearts get broken, and the decision to deny is not necessarily for pernicious reasons. One of the hardest things about being an admissions officer is having to turn away people that you adore.
But to circle back to holistic, what that means at schools like Harvard and its peers is that admissions officers are doing what they call a whole-person review of the candidate. They explicitly are not looking just at hard numbers, like grades and test scores, and applicants are expected – it’s a lot to expect. They’re expected to present a cohesive personal narrative and a story about themselves throughout all the application components.
So there’s a human element to the applications themselves, and they get reviewed by human beings in some subjective ways. We could have bots making admissions decisions based on weighted algorithms. That would be much cheaper and faster, but that is not how admissions gets done currently at the highly selective colleges. So not only are they evaluating a lot of squishy factors, but on top of that, they’re also comparing apples to oranges, since people are coming from such different backgrounds, different levels of opportunity, and different levels of access and privilege. They know this.
Those human elements, just to give people a sense of the different kinds of things that they take into consideration, include things like what kind of high school you attended and what kind of opportunities you had there; the rigor of your high school courses and what kinds of courses were available to you; information about your family, personal essays, a councilor recommendation, teacher recommendations, sometimes alumni interviews, demographic information like race, first generation status, veteran status, etc.; activities, sports, work experience, life experience, family obligations, and what admissions officers call noncognitive factors; things like leadership, grit, kindness, success in the context of personal or family hardship, and character, and more. That’s just some examples.
So they have a lot of information about you when they are reading your applications. At Harvard, in particular—and we know this from the discovery process from the lawsuit—they give scores to applicants based on five buckets that they mush all of these into; academic, of course, makes sense, extracurricular. Third is athletic. And what we also know from the discovery process is how much of a bump and a boost recruited athletes get. That’s incontrovertible at this point.
The controversial buckets, for these purposes, are number four and five of the personal category and the overall category. The personal category is a subjective assessment of the person and their character. If I remember the hundreds of pages correctly, Harvard claims that race is not considered in the personal category, but that they can and do consider race in that final overall category, number five, and in the final admissions decision.
As I understand it—and here Cory can certainly correct me—the plaintiffs suing Harvard were making two different claims. One is a claim, as a matter of law, that affirmative action policies, as practiced by Harvard and many other highly selective colleges, should be deemed unconstitutional and that colleges should not be allowed to consider race at all. We can talk about later about what that would actually mean in practice for admissions officers, meaning effectively that the admissions process would be re-splined.
Second is a factual claim that Asian Americans are discriminated against in Harvard’s process. I mentioned that because the coverage of the lawsuits that I have read conflate the two claims in a lot of ways, when, in fact, there are two separate claims, and to my knowledge, they involve different legal standards. With respect to the constitutionality of affirmative action, in general, one can obviously debate whether that’s a good system and which squishy elements should be considered at all. Obviously, that’s a source of much dispute, why we’re here today.
But to be clear, under the current law, Harvard’s affirmative action policy, on its face, does abide by Supreme Court precedent and the current state of the law in Bakke, Gratz, Fisher, that whole line of cases. So if the Supreme Court decides to ban those practices, it will effectively be overturning decades of precedent, as sometimes it does. The composition of the court has changed since those prior cases were decided, and so now we potentially have just six votes that might strike down affirmative action. We shall see.
The factual claim is an interesting one as well. That came down to a battle of experts at the district court level. Each side had a highly respected economist doing a regression analyst on Harvard’s admissions data over—I think it was—the previous six years. Now, I should note I’m not an economist or a statistician, neither are the judges I’ll point out. The economists for the plaintiff attempted to show that discrimination is in fact occurring against Asian American applicants, compared to other similarly situated demographics.
The economist for Harvard argued that the plaintiffs’ methodology was flawed. You are all welcome to dig into the studies and draw your own conclusions. I believe the district court ruled that the data were inconclusive with respect to whether discrimination was happening at all or what accounted for the difference in outcomes, meaning they also were unable to reach a conclusion that there was an intent to discriminate.
And as many of you already know, the appellate court upheld that ruling. It went so far as to say that factors external to Harvard, like personal essays and recommendations, were the cause of the negative correlation between being Asian American and that personal score, rather than any racial animus. I’d love to talk about that later if there’s time.
Because I think if that is the case that councilors or teachers, who write recommendations, or the alumni who conduct the interviews might have implicit bias against Asian Americans, then surely the colleges can and should control for that in their evaluations, and if they’re not, shame on them, right? So we can circle back to that. I think that’s a really interesting thread to pull there.
The part that is very interesting to me, from the admissions side, is that the plaintiffs, I believe—Cory, again, you’ll correct me—never argued that affirmative action was working as a penalty against Asian American students. I think they conceded that Harvard’s preferences for black and Latino applicants could not explain a purportedly disproportionate negative effect on Asian Americans.
So affirmative action wasn’t actually the problem, but as a remedy, they are seeking to have the Supreme Court strike down affirmative action. Let me show you one slide. I promise just one slide that might make that more concrete for our audience. In particular, just because a college takes race into consideration, does not mean it has to work to the detriment of Asian American applicants.
So let me pull up my little slide here. All right. Please give a holler if you’re not seeing that. You should be seeing something labeled “The Common Data Set 2019 to ‘20” which I pulled up. This is a questionnaire that colleges fill out every year. It’s a standardized questionnaire. And they actually say what they consider in the process. So I pulled them up for Harvard and Caltech.
Now, Harvard is interesting because you’ll see that they lump the factors that they do consider—and they do consider race here as highlighted—they lump everything into the considered column. They don’t break it up between very important versus important versus considered. And I think lumping it all together just into the one considered column contributes to this lack of transparency and this feeling that you’re dealing with a big black box that so many applicants, I think, find understandably very frustrating.
But look at Caltech, in contrast, over on the right side. They actually do put things in different columns. Contrary to a very persistent myth, Caltech too takes race into consideration, right? So they disclose that here in their common data set. Let me stop sharing and get back to – here we go. There are some stats I want to make sure that I get right.
So if you look at Caltech’s data here, they take race under consideration, and yet Asian Americans make up something like 40 percent of the admitted class at Caltech. And even at Harvard, Asian Americans are overrepresented compared to their percentage in the overall U.S. population. And I believe their representation at Harvard has increased by something like 29 percent over the last decade.
So if I understand the discrimination claim accurately, it really revolves around the fact that Asian Americans are the least overrepresented demographic among students that Harvard admits because I would venture that Asian Americans have been benefitting from affirmative action, given those statistics, but perhaps just not enough. But that seems to be the premise.
And from personal experience with applicants, I also want to add that there are plenty of Asian American applicants, and, of course, it is not a monolith. There are many different subgroups among Asian Americans, and certainly, there are different camps as well on this topic, but there are plenty who do want to tell their personal story in a way that does not ignore race—they’re race—certainly, at this moment, in U.S. history where the most obtuse observers can see that animus against Asian Americans and American society is very real, and there are applicants out there that don’t want to hide that aspect of their lives and do consider it an important part of their narrative.
So I don’t want to hog too much time. I have some thoughts on what the Supreme Court might do if it grants cert and where I think the vulnerability is for the current affirmative action regime. Dan, do you want me to hold off on that. It’s about another, I don't know, maybe three, four minutes.
Dan Morenoff: I think we’re probably best-off letting Cory [crosstalk 00:18:47].
Anna Ivey: Yeah. That’s what I figured too. Okay.
Cory Liu: Okay. Well, thank you, and I definitely look forward to having a chance for us to go back and forth. I’m sure we could ask a lot of really interesting questions to each other, and so I definitely look forward that part of this. But I want to take my time to tell a little bit of my own story of how I got interested in this issue.
It basically stemmed from my application to college. That was the same year as Abigail Fisher 2007, 2008 cycle. And I had a lot of Asian friends, and we were all going through the process together, and when we hear that lofty rhetoric, part of what Anna described and what we see on the websites of all these different schools about taking into account who you are as an individual, “getting to know all aspects of you, beyond just the academics, and to get to know the whole person,” which is often used as a definition of what holistic means.
What does that exactly mean? And if race is a factor, how does that affect someone who’s Asian? And a lot of us had this sinking feeling that we were not exactly the objects of sympathy of these university administrators in terms of who they felt deserved extra weight in evaluating a student’s race, and that we would hear terms, like Anna said, “overrepresented,” as if, if just a couple of percentage points of the population who happen to be Asian did well, that would meant that all of a sudden, we don’t face discrimination or somehow we’ve exceeded our share, and so now we’re taking up spots from students of other races, something like that.
And so that’s just something that I think a lot of us intuited, knowing that there’s just not a lot of Asians out there. And so if we’re going to be evaluated against other Asians, that means the competition’s going to be stiff.
But a school like Harvard, because it’s a private university, never had to make their admissions information public, and so it was only after the Students for Fair Admissions v. Harvard lawsuit that we got access to the secret documents, after a lot of litigation and a ruling form the judge. And so now we’ve learned more than we’ve ever known about how Harvard does undergraduate admissions. Unfortunately, a lot of the facts that came out confirmed our worst fears.
And so I’m just going to do a little screen share and go through the facts probably a little more quickly than you would if you were litigating this, but just to give you a flavor of it. I know some of you may have some familiarity with the case. So this is a graphic that I got from The Harvard Crimson. It says the source is court documents submitted by Harvard, but it just shows the average SAT score for students basically broken down by race, who were admitted to Harvard. And as you’ll see Asians have the highest SAT scores. Whites have the second highest. Hispanic have the third highest, and African American have the fourth highest.
And as you see, these results are replicated year after year, right? This goes from 2000 all the way up until the present. And so what explains why students of different races have different standards for what kind of SAT score it takes to get admitted, and why does a racial breakdown just so happen to correlate with the preferences that Harvard uses in terms of racial discrimination in its admissions?
This is an interesting slide where Harvard actually became aware of accusations that its admissions policies were discriminatory against Asians, and so they conduct their own internal study of the question. And as you see from the headlines—this is also from The Harvard Crimson— “Internal Harvard Review Showed Disadvantage for Asian Applicants.”
So basically what I found was that if Harvard looked at academics only, Asians would be 43 percent of the students. We can talk more about legacy and athlete preferences later. I disagree with them strongly in terms of – I think it’s a corrupting influence, and if I were a member of Congress, I would probably strip Harvard’s funds for doing this, but we can get into that later.
So once you have legacy and athletic preferences, you see it goes on to 31 percent for Asians, and then we look at extracurricular or personal ratings. Then, it goes down to 26 percent, so I suppose the idea is that Asians have worse extracurricular or personal ratings, and then finally, demographics means explicit consideration of race.
And so there you see it goes from 26 to 18 percent, and there’s a table in the complaint in Harvard that basically shows that Asians are about 17 to 18 percent of the student body at Harvard for several decades. It’s eerily locked in at the exact same percentage year after year. And you can see here the different ways that they weave through it.
Now, what I want to draw attention to is, notice how they lump extracurricular and personal together as if to say, “It’s on Asians that maybe they’re not so well-rounded, and so that’s why they’re not doing as well as their academics would suggest.” But interestingly enough, one of the things that came out in the litigation was that Asian Americans actually did better on extracurriculars than white students. And you can see that in the highlighted portion here. This is the district court’s opinion.
So remember, it was extracurricular and then the personal rating, right? So Asians are actually outperforming students of all other races on extracurriculars, contrary to the stereotype that they’re not well-rounded, so it’s actually the personal rating that is doing the work that’s lower on the percentage of Asians.
Now, what is the personal rating? It is an evaluation of personal qualities, the intangibles, things like integrity, helpfulness, courage, kindness, fortitude, empathy, confidence, leadership ability, maturity and grit, all these very squishy, very subjective determinations. And so it is because of the personal rating that Asians get penalized so much at that step. Remember, this is before the explicit consideration of race, but it’s enough to wipe out all of the strengths on the extracurricular performance and still causations to suffer the admissions process even more.
And this is from the plaintiff’s appellate brief, which shows – this has to do with the personal ratings, and it’s a little complicated to explain the numbers. I won’t take five minutes to do it. But what it’s showing is among the most competitive students, who Harvard is seriously considering admitting, that the personal ratings differ significantly, and it actually correlates – again, we see Asian Americans have the worst personal ratings, then whites have the second worst, then Hispanics, and then African Americans have amazing personalities, and personal ratings are well above students of other races.
And so again, why do we see – Harvard claims that this is race neutral, by the way. They say the personal rating is an objective assessment of your personality, and then there’s a later, a subsequent, explicit consideration of race. But I think what this suggests is that actually the personal rating is infected with the racial preferences that Harvard is using, contrary to whatever their purported policy is.
Finally, this is an interesting little tidbit. It’s a small part of the litigation, but interesting in terms of rebutting the narrative that they’re trying to get to know you as an individual. Harvard, in trying to recruit their student body and achieve diversity, they send letters to recruit students who do well on the PSAT.
And if you’re from sparse country, there’s a separate standard to recruit students from these states where maybe they don’t get as many of the most competitive applicants. They’re highlighted here in this graphic. And you see here in sparse country, a white student will be invited to apply to Harvard with a 13-10 score from the PSAT, but then Asian students are held to a higher standard.
This is completely mechanical based purely on your race. There’s no getting to know you as a person, are you a native born, a Chinese American, or did your parents immigrate here, did you grow up in poverty, are your parents PhDs. This is just purely mechanically based on race. And so it rebuts the claim that they are having a sophisticated method of trying to get to know who you are as an individual. These are just a few of the facts. My amicus brief covers other things that show that they’re using a racial quota.
But I think this gives you a sense of the idea of why Asian Americans are so upset that they feel that their race is being used to penalize them. They feel that there is this term “overrepresented,” which means that if Asians exceed just a single digit of the population, that they occupy, that they’re going to be seen as there being too many of them.
And so you should be grateful that you even have this many percentage of the student body and not ask for more, even though, effectively, they’re being held to the highest admissions standard compared to white students, black students, and Hispanic students.
What I want to go into here is a couple of articles that were written after these facts came out from the Harvard lawsuit because it really triggered a strong emotional outpouring for many Asian Americans who empathized with these students who are being rejected from Harvard, and not all of them are conservative or activists. You often hear the accusation that this is a lawsuit that’s using or exploiting Asians somehow to advance a conservative agenda. Harvard has used that talking point all the time.
But actually there are people who are either ambivalent about affirmative action or who actually may think that there’s benefits to affirmative action, who still think that Harvard is discriminating against Asians because that’s what the facts are.
So this is an article by Professor Jeannie Suk Gersen. She’s at Harvard Law School. Here’s what she wrote in reaction after the trial. “The application process for schools, fellowships, and jobs always came with the rich. A person who had a role in choosing me, an admissions officer, an interviewer, would mention in his congratulations that I was different from the other Asians. When I won a scholarship that paid for part of my education, a selection panelist told me that I got it because I had moving qualities of heart and originality that Asian applicants generally lacked.
“Asian applicants were all so alike, and I stood out. In proof, I wasn’t much different from other Asians I knew. I was shy and reticent, played a musical instrument, spent summers drilling math and had strict parents to whom I was dutiful, but I got the message. To be allowed through a narrow door, an Asian should cultivate not just a sense of individuality but also ways to project not like other Asians.”
This is from Slate magazine, Aaron Mak. Again, someone who – he describes himself as having sympathies for affirmative action. But this is an excerpt that I cut out. It’s a very long article, but I think this is probably the most scathing thing I’ve read and really resonated the most with how I felt when I applied as a high school student. “Like many other high school seniors, I carefully manicured my identity to cater to the admissions committee. But that effort also involved erasing it in order to appear white, or, at least, less Asian. I chose to leave the optional race and ethnicity section of the form blank—a practice common among Asian applicants.
“I assumed Mak isn’t a popularly known Chinese surname in the U.S. My dad used to jokingly point out that it’s one letter off from the Gaelic surname Mack. Maybe an oblivious admissions officer would mistake me for Scottish. (I didn’t tell my father how much I’d hoped our family name would be misread.) I marked my intended major as philosophy, thinking this was one of those impractical fields that most sensible Asian parents would not allow their children to pursue. I had no intention of actually following through. . .
“I avoided participating in the future doctor’s association, ping-pong club, robotics, the Asian culture group. I quit piano, viewing the instrument as a totem of my race’s overeager striving in American. I opted to spend much of my time writing plays and film reviews–pursuits I genuinely did find rewarding but which I also chose so I wouldn’t be pigeonholed. I enrolled in a Mandarin course during my senior year of high school, never having learned a Chinese dialect as a kid, but I dropped it a few weeks in. I told people it was because I was too busy, but in actuality, I didn’t want Mandarin on my transcript and as a second language on my application, which I feared could be a red flag for the admissions committee.”
So let me just stop screen share here. So we have the rhetoric of treating everyone as an individual, getting to know you as a person, and then we have the reality of how it actually is practiced. Anna mentioned the debates between the experts, but I don’t think you need a PhD in statistics to know that if race is going to help some people, it’s going to hurt other people where there is a limited pool of the number of students that who can be admitted.
And I think what this lawsuit has done is highlight the unique way that this kind of policy would affect a group, like Asians, where we’re only single digits of the population, and basically, as Judge Sparks said in the Fisher lawsuit, the University of Texas lawsuit, “Asians are overrepresented.” He italicized that as if to emphasize that was basically all that needed to be said about Asians. It was the only mention in the district court, the Court of Appeals, or the Supreme Court’s opinion in that case.
And so when I read that, that was the definitive resolution of my rights and where I belonged in this country and where my kids would belong, that one sentence that we’re overrepresented, that’s inadequate. Our Constitution guarantees equal protection of the laws, and it guarantees anti-discrimination. That’s the legacy of the civil rights movement of Brown v. Board of Education. And here we have schools patting themselves on the back, congratulating themselves for policies that they’re claiming are being inclusive, when, in fact, year after year, they’re continuing to discriminate against thousands of Asian Americans.
And so what this lawsuit has done is given a voice to so many of us who felt that we were ignored by the courts, that we were ignored by the media. I think finally as you saw with those two articles I showed, there’s been some media coverage of the Asian perspective, in a nuanced way, that does address some of the problems caused by these policies, and I don’t know what the Supreme Court will do. It’s going to be up in the justices’ hands.
But to quote Adam Mortara, the trial lawyer who gave the closing argument at the Harvard trial, “The history books will show that there was discrimination against Asians, that much we know. The facts are indisputable, and the only question that remains to be seen is whether the courts did anything about it.”
So I think there are many Asian Americans who are eagerly awaiting this opinion. We hope the court does the right thing, but regardless, I think it will go down in the history books as exposing a terrible chapter in our country’s history that we should all be ashamed of. All right. Anna, I don't know if you want to start the Q&A, or if Dan has any questions, we can go back and forth. I have some questions to ask you, but if he just wants—
Anna Ivey: Yeah. I have thoughts. Sorry, Dan.
Dan Morenoff: Yes. No. Please. If you do, I certainly want to give you a chance to respond [crosstalk 00:33:12]—
Anna Ivey: Yeah. Look, I’m really not here as the pro-side to Cory’s anti-side. I think we’re actually converging in some ways that I think could be interesting if we flushed it out a bit. Some of the things that jumped out at me, from Cory’s discussion just now, is that with the highly selective, aka highly rejective, school like Harvard, for some people there is this huge obligation to stand out, right, and look different, and the thing that I think he’s absolutely right about is that that expectation is not applied across the board.
If you’re a wealthy white person, who’s strong in sports or who’s parents went to Harvard, you don’t look all that different from other legacies and recruited athletes. There is no obligation that you abandon your activities for something else and try to be the flower that sticks up this way instead of that way. And I think that is a very astute observation that Asian Americans do feel that pressure, and I can confirm that pressure is not applied to, certainly, plenty of categories within white applicants.
I’d like to turn to what I think the Supreme Court might do if they do grant cert and decide they want to knock this – at least, shut down affirmative action. I’ll just say on the discrimination side – Cory, all due respect, I’m not a litigator in this case, and I have not filed an amicus brief, so I’m not really taking the advocate’s role in that respect. But I do think, by definition, the facts are controvertible, so I just want to push back a little bit on that; although, I can certainly understand your argument and your position, and I’m not saying it’s wrong.
On the affirmative action side, the other claim, if the Supremes—how I like to call them—do take the case, I think the current affirmative action regime is most vulnerable when it comes to how to define diversity, right, because it’s been deemed a compelling state interest under the Equal Protection Clause, right, by previous compositions of the Supreme Court. But how much diversity is enough diversity, right? That’s back to your point, Cory. How does that get decided? And there’s a lot of bodies buried probably, right, in that system that is not so attractive and that schools might not want us to know about.
So the Supreme Court has historically given great deference to universities to make that determination about how much diversity they need, and how much is too much, and for what groups. They’ve deferred to the universities, but that’s very vague. And so I think that’s one area of vulnerability. And then because the previous cases said, “Over on the non-permissible side is something that’s mechanical; its quotas; its set-asides; its points. What’s permissible is a goal,” right, whatever that means, “where race is ‘not decisive.’”
Basically, that whole line of cases, I think has created this holistic system that we’ve ended up with. Because in that universe, schools can stay on that side of the line, right? But at the same time – because they can say, “Look, we point to all these other nonquantifiable subjective things, and we’re all going to put them in the same category, considered. But that gives them a lot of cover, and that goes back to that lack of transparency, that I’m not a huge fan of, and I think I can understand why people are extremely frustrated with that.
So where’s that line between critical mass and quotas? Who knows? And is that a justifiable regime that we live in? Maybe not. I think that’s a vulnerability. And the current permissible model of affirmative action, they have this diversity rationale, but it has also not been extended to race-based practices outside of higher education, so there’s also a consistency problem.
So, for example, they don’t give nearly as much deference to employers, and I defer to the actual current litigators here. I’ve been out of school for a while, right? But the whole Adarand line of cases, they don’t defer to employers when employers want diversity, right? They don’t give that kind of deference to employers the way they do to universities.
And so I think there are a couple of different spots where a court might take a fresh look at this and say, “There’s a lot that’s out of whack here,” and given the new composition and the way the voting might go, yeah, that might be what it takes. But let me stop there, Cory. I’m still curious to hear more from you.
Cory Liu: Great. Well, I can give my little speech on the diversity rationale and some legal critiques of it, but I want to just start off by asking, do you think—and I don’t want to get too – answer to whatever degree you feel comfortable. I’m sure you have plenty of clients in your college and law school consulting who are Asian. Do you ever recommend that they try to be either careful about looking too stereotypically one way or trying to round themselves out by doing certain things that are against the stereotypical Asian model?
Because that’s what I would tell my kids. I think by the time I start thinking about college admissions, I might. But I had most of my high school record already completed, but if someone asked me that, I would probably say like those folks in the article said, which is “Be careful about doing piano, math, and wanting to be a premed or an engineer because that could really box you into a category where they just feel like there’s too many people who all look the same.” Do you think that’s a concern that a young Asian would be well-advised to think about?
Anna Ivey: We never tell people to pretend to be something they’re not or to care about things that they’re not genuinely interested in, just in the interest of “college.” There’s a challenge that every applicant has, regardless of race or ethnicity, which is chances are there are plenty of other applicants who have some very similar credentials, and the art and the science of doing the whole application is to pay within whatever it is you’re doing. How do you tell your story in a way that’s your voice, and sounds authentic, and makes clear you’re you, and you’re not all these other people?
We face similar challenges with, for example, applicants who are first-gen Americans, and they have really interesting immigrant stories, but when you read thousands of them, they do blend together a little bit. You’re not going to fake that. You’re not going to pretend you’re somebody else or your background isn’t what it is. But how do you tell your story in a way that it doesn’t just blend together? That’s a challenge for a lot of applicants.
But to answer you question directly, no, we wouldn’t say try to hide your Asian-ness. Let’s figure out how to work on these pieces of the application so that you become more 3D in a very 2D format that they force you in, and that’s hard in general. I would also add that I don’t want to dismiss your concern, though, and I can understand why that’s a real concern. But even taking just Harvard, as the example, there are plenty of Asians who play violin and had certain activities, and so it’s not as if these things are somehow complete deal breakers.
But as I say, I’m not insensitive to what an Asian American applicant – which I’m not, obviously. That part is not personal to me, and I get that difference, but I would say it’s not an obvious, immediate deal breaker, but I absolutely can understand where that frustration comes from, and I think because of the black box of holistic admissions, I think, ultimately, nobody ever knows why they got in or didn’t. You can make some conjectures. Sometimes, you think, “Okay, my guess is X,” and it’s probably pretty solid. But ultimately, you’ll actually never know.
And so I think sometimes people who haven’t sat on the admissions side of the table can assume certain, “Oh, I must’ve been denied because I play violin, and I’m Asian American, and I fit the stereotype,” when maybe that wasn’t it. So as I say, especially, when they’re rejecting so many people, I think it’s hard to jump to very specific conclusions about why any one person didn’t get in, even when they look really, really qualified. They turn away lots of qualified people every single year, right?
Cory Liu: And what I want to suggest is that, as in all areas of race discrimination, right, there’s rarely a smoking gun. Let’s say in employment. I’m firing you because of your race, right? We don’t see emails like that. We just have to infer from the circumstances, the treatment, compared to the treatment of other people, and there’s always if it’s a fact-intensive question.
And so you’re right. You don’t get a written explanation, but we do compare notes, and year after year, and people are sharing their stories. And so when I was in high school, one of my classmates who was my friend, he had a perfect SAT, perfect ACT. Some of the immigrants, their parents didn’t have much, but they really sacrificed a lot to give them a chance to—stereotypically unfortunately for him—to be a doctor.
And he was great in sciences, had a really sweet heart, but boy, I could just see the white admissions readers picking it up—especially, at the Ivy League school—saying – and, in fact, there was a FOIA request. I went to Princeton where certain documents came out, where it was basically just yet another strong-in-math, strong-in-science Asian student, all right, just another one of those.
In the Harvard case, there’s the standard, strong kind of note that has been discussed and litigated. But the idea that, well, yeah, we just have a lot of people who fit that profile, so if it was a black student who had a perfect SAT, perfect ACT, and wanted to be a doctor, you know the reaction would be different. I think we all do. And I’m not going to force you to answer the question, but I think we all know that on a gut level, and it was just sad to see that happen to him.
And so we don’t get the explanation, but I don’t think that means we could say that there’s no discrimination. Just as in each of these police shooting cases, for example, right—the things move fast—there’s no explanation of why that happened in the moment that it happened. We just watched the video, and we have drawn our conclusions based on our experiences and our past. And so I think a lot of Asian Americans do feel the process is unfair.
I just want to say a little bit more in response to the diversity point. It’s interesting, I found in my discussions, with various people, that nobody really believes the diversity rationale is the primary motivator for the policy, and like you said, it’s an amorphous concept.
I did a talk at UT, the University of Texas Law School, with Professor Sanford Levinson, and he’s critiqued the diversity rationale as saying that it’s inherently arbitrary because there are so many factors that make us different and unique, that you’re going to have to inevitably take a few that get priority, and others that get ignored.
His example was he would like to see more Muslim students, and that’s not really prioritized. So what you end up having is a hierarchy of what you call a hierarchy of victimhood, a hierarchy of oppression or preferences, or whatever word you want to use, and as some of those graphics that I showed, it’s very quantifiable the extent to which those preferences can be compared to each other, and that’s an unfortunate part of that.
I also had a discussion with Professor Randall Kennedy at Harvard. And I actually found it very refreshing because he says, “Look, we all know diversity is not the real reason we have this policy, and we all need to stop pretending that there aren’t victims.” Because, of course, there are victims, right?
“If you’re going to help some students, it’s going to hurt other students, and let’s just stop the kind of acute doublespeak, the political rhetoric, and let’s be real about what it’s about.” And he would nonetheless say that given the history of African Americans in this country and the unique circumstances of slavery and “Jim Crow,” that other racial minorities haven’t faced, that they deserve an opportunity, through this policy, that is really unique to them.
And so I think, at least, I find with him, I’m able to have a frank conversation on what’s going on. I think what is unfortunate about where the Supreme Court went, in an ultimately a compromised opinion that was internally self-contradictory in Grutter, was this diversity rationale. Justice O’Connor even said, “Well, I think it’s okay today, but not 25 years from now.” [Crosstalk 00:46:25]—
Anna Ivey: Yeah. That was really a bit of a cheat. Yeah. Let me ask you though, when you say that you don’t think the schools actually care about diversity – I understand the argument of actually there are winners and losers. It’s a zero sum. That part I understand the argument. But when you say you think that schools don’t actually care about diversity, why do you think they do what you think they’re doing? Is it animus? What is it?
Cory Liu: I think it’s politics. I do think they believe that they’re achieving diversity. I’ll give you that. But maybe on a subjective level, they believe they are, but in practice, of course, what it means is there’s a few particular groups, that they focus attention on achieving certain numbers for various other factors of diversity, get ignored or are vastly arbitrarily selected for, and that’s predominantly race.
If you go and look at the racial breakdown of Harvard, which has been consistently the same for about 20 years or so, you can see that they’ve carefully engineered it to look that way, and I think it’s politics. I think actually the legacy admissions is highly controversial, which is basically corrupt admissions for whatever donors—
Anna Ivey: Let’s talk about that.
Cory Liu: — prominent families, people who are famous and powerful, and using that in a shortcut for their kids to get into college. And perhaps to deflect some of the scrutiny and attention away from that, they say, “Well, we’re also doing racial diversity, and so look at this, we have students of all colors here,” and I think it’s to insulate criticism for their eliteness and the practices they use to perpetuate the eliteness.
Anna Ivey: Yeah. Well, it’s a reminder that on a very fundamental level, if you’re at a selective college – again, by definition as an admissions officer, you are discriminating. You’re saying, “You get in, but you don’t, for whatever basket of reasons, and you don’t.”
Well, there’s permissible discrimination, which is the day-to-day admissions world, and then there’s impermissible discrimination. But let’s be clear, being an admissions officer at a selective college, you’re discriminating among different applicants, including in a non-pernicious way, all day long. That’s the definition of selective admissions. I don’t want to call it an oddity. That’s the wrong word.
But an interesting aspect to our legal system is that when you discriminate based on race, in a penalizing way, that does implicate the Constitution. If you discriminate based on sports ability or legacy status, that’s not obviously implicating the Constitution, right? We don’t have language in the Constitution about legacies and recruited athletes.
And you’re right, one of the things that came out of that big data dump from the discovery process was to get some hard numbers around legacy admissions and recruited athletes, and also people that are donors. And it is something that we all knew anecdotally. We knew this was happening. We knew this was a practice and a strong preference. But it’s another thing to see the cold hard data, so I imagine we have you personally to thank for that.
And I don’t disagree with you in the slightest. I think the rule of sports, to this degree, and legacy of admissions is totally corrupting of the mission, and if they really care about their educational missions, why don’t they care more about what it’s doing on that side of things. And I get it. I’ve also worked in development at Stanford. I know how this sausage gets made.
I understand that—and certainly on the legacy side—this was very much a revenue-driven consideration. But it really, I think, puts to bed any fiction that admissions to these highly selective colleges is some kind of meritocracy. That is dead in the water, right? And the idea that, “Oh, because you got into Harvard means you’re some kind of academic superstar.”
Cory Liu: Yeah. Well, I just want to—
Anna Ivey: It’s just that cliché is now just blown out of the water. I also want to point out that—and you might have strong feelings about this as well—part of the issue too is that when we talk about overrepresentation, or underrepresentation, and I agree those are fraught terms, all these forms and the data analysis tends to lump Asian Americans together, when, in fact, I believe, for example, Southeast Asians are actually underrepresented, right? For example, Filipinos are underrepresented.
You parse it out a little bit, and you realize you really shouldn’t be talking about Asian Americans as one giant category. That’s just silly. One of the things from when I was an admissions officer, and I still see it now in all the applications, when there are those dropdowns in the applications where you categorize your race—and it’s optional, but it’s there—they use the categories from the department of education. And I have so many beefs with the taxonomy. So many. Not just for Asian Americans.
The way they define Latino, in some ways, makes no sense at all. It gets really silly, and then the schools add their own layer. And so, for example, some schools will say, “Well, if you’re from North Africa, you count as white.” Well, I promise you, someone who’s from north Africa doesn’t consider themselves white and actually finds that a bit offensive that they’re being lumped together. It’s so fraught.
Cory Liu: And if I could briefly mention—
Anna Ivey: Yeah.
Cory Liu: —my amicus brief with Professor Bernstein makes that exact point, which is that where did these racial categories come from? The answer is actually, according to his article, basically some bureaucrats in the ‘70s realized they wanted to standardize the categories, so they kind of arbitrarily built—
Anna Ivey: Yeah. And it’s a garbage taxonomy. It’s a garbage taxonomy. I—
Cory Liu: Which is what may amplify the tragedy, that that’s being used to discriminate against a whole group. And actually, our brief also points out to various points in the record where they don’t differentiate among Asians. They actually just look at the raw number of Asians overall, and so I think those are all criticisms that reinforce the arbitrariness of what they’re doing.
To be narrowly tailored, you have to justify the categories you’re even using. Why do these particular categories promote educational diversity? And finally, I just want to emphasize one point, which is that because these racial categories are arbitrary, I don’t think they should ever be used in admissions, but I do think schools can legitimately and certainly lawfully consider socioeconomic factors, the family you grew up in, things like that that are race blind. Because the truth is race is not a perfect proxy for disadvantage. And I think there’s other factors you can look at that more accurately describe whether someone’s advantaged or disadvantaged. And so that’s why I think it’s [crosstalk 00:53:17]—
Anna Ivey: But can I ask one super practical question?
Cory Liu: That’s why I think the focus on race is a political thing, rather than a genuine attempt to bring advantage to people who are disadvantaged.
Anna Ivey: Well, I think that was the old rationale. From an affirmative action, I don’t think it is now. But Cory, can I just ask you a really practical question because this actually does play out in real life? If you are race blind, or you’re race conscious, and you just get your yield wrong, which is a whole thing for admissions officers, say you got an incoming class and there’s one black person, do you think that’s the right outcome or do you think that’s a problem?
Cory Liu: I would say that—
Anna Ivey: And this did actually happen at Berkley Law School. It actually happened at UChicago Law School, as well, at one point. Would you find that troubling and is that outcome okay? And I don’t ask that rhetorically. Is that something that you think, “Yes, that’s the right outcome if it’s race blind in the process”?
Cory Liu: Yeah. I think we will never achieve utopian proportional representation in all fields. It will never be the case, for example, that Asians are six percent of every single field. There will be some fields where they’re overrepresented; some fields where they’re underrepresented. Because it would take a communist level, a planned economy, to achieve picture-perfect representation in every single field. So I think that’s an unrealistic standard to go by.
To the extent we’re concerned about making sure that these institutions of power are actually accessible to people of all backgrounds, I think it’s good to make sure that we do have inclusivity and accessibility. I think where I would draw the line is at quotas. And so I think trying to focus on improving—
Anna Ivey: Right. But do you think that – so if I understand you correctly, that outcome is okay. It might not be ideal, but you’re okay with that scenario.
Cory Liu: I think it’s possible that if it’s the outcome of a fair process and that the applicant was not limited to that percentage of the student body because of their race. And I think the question would be we need to ask the question, why? Why were the X, Y, Z students not accepted? Was it because of their academic performances? Was it because of one of the factors? And look at are they legitimate or not legitimate factors, right?
So if it was purely on academics, and that resulted in a particular racial breakdown, then the question would be, “Are we okay with students of a certain race having lower LSATs or SATs?” And then we’d have to look at whether the test is a good test, but I don’t think we’re ever going to get a perfect utopian breakdown of where it’s X percent white, six percent Asian. That’s not how a free society ends up. And I think to try to force it to look a certain way, inevitably imposes these costs and generates resentment.
Dan Morenoff: Let me throw in, I don’t know, two to three things rather briefly because I know we’re running short on time here. I know both of y’all have discussed the subcategory of legacies and athletes, and, of course, at least, from my read of Harvard’s briefs, it lumps in legacies specifically with the children of Harvard’s staff and faculty.
Anna Ivey: Yes.
Dan Morenoff: Now, that’s how they [inaudible 00:56:23]. But they actually, in their brief, argued that the fact that there is no racial difference in the admissions, qualifications, and percentages of Asian versus non-Asian faculty families, or legacy families demonstrated there could not be racial animus. This struck me as profoundly silly as an argument and—
Anna Ivey: It is.
Dan Morenoff: —to barely, barely be credible. Basically, they’re saying if the people in the club are all discriminated for equally, then is it somehow possible that this favorite race outside the club aren’t being discriminated against?
Anna Ivey: Right. And let’s point out the obvious. The legacies and the recruited athletes are overwhelmingly white. So that was a very self-perpetuating system, but I know we’re running out of time, so I’ll—
Dan Morenoff: Absolutely. However quickly, I want to mention that I find it not at all surprising the pinhole of three people who went through the University of Chicago think that college athletics is a deeply corrupting influence on our institutions.
One last thing, which I’ll throw at y’all as kind of a closing question, and it might be very brief, if – as I think you both said, the district court concluded that the battle of experts was inconclusive. It couldn’t tell if there was discrimination. On a strictly legal front, if this is strict scrutiny, how can the school win if that’s inconclusive?
Cory Liu: I don’t think they can. I think it’s up to Harvard to justify the particular categories it shows, the particular weight that they give to different racial categories, whether they did it consistently, and they have failed to be able to satisfy that. And so they resort to slogans such as “Your race can only help you. It can never hurt you,” which, of course, we know is logically not possible, and basically hope for the goodwill and deferential nature of the judges.
Anna Ivey: And I don’t know that it would pass strict scrutiny if it was the same standard across the board, as we had seen in the employment world, right? That’s one of the – we’re used to this in other areas of the law too, but the standard of strict scrutiny morphs, depending on all kinds of things, right? And if they tighten up strict scrutiny for higher ed, yeah, I think you’re right.
Dan Morenoff: Right. If strict scrutiny is strict scrutiny, even when it’s a school, then I think [crosstalk 00:58:49]—
Anna Ivey: But we know what they define as strict scrutiny is a very gerrymandered concept, right?
Dan Morenoff: Yeah. Well, there’s a lot more we could [crosstalk 00:58:58]—
Anna Ivey: So much more.
Dan Morenoff: This has been fascinating, and I hope that I get to have those conversations with both of you offline. I know we are out of time. So with apologies to all of the people who have written questions, which I’ve been scanning as we’ve gone along, and they’re quite good. I don’t think we have time to address every single one of them—
Anna Ivey: I can stick around if Cory can.
Dan Morenoff: —and I apologize. So I think we probably need to wrap up. I want to thank both of you myself for agreeing to do this and for sharing your thoughts, and I’m going to throw this back to Evelyn.
Evelyn Hildebrand: Thank you all very much for this fantastic discussion. I want to extend thanks from The Federalist Society to our panelists and our moderator. If you have any feedback from our participants, please email us at firstname.lastname@example.org. In the meantime, please check your emails for any upcoming teleforum announcements in the coming days. Thank you all very much for participating. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.