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Jeannie Suk Gersen: Do Elite Colleges Discriminate Against Asian Americans?

11.9.20

Jeannie Suk Gersen headshot over an orange background.

Jeannie Suk Gersen

Photograph by Nina Subin


Jeannie Suk Gersen

Photograph by Nina Subin

 

 

 

Decades of Supreme Court precedent says colleges can use affirmative action in admissions—but the court's new composition could change all that. In this episode, Harvard Law School professor Jeannie Suk Gersen breaks down everything you need to know about the lawsuit alleging that Harvard discriminates against Asian Americans in admissions. She explains why the stakes of this case may be different from what you think, and why the question of whether Harvard discriminates against Asian Americans can be treated separately from affirmative action. And she speaks so poignantly about her own experience as an Asian American in elite institutions: "At some point in my past," she says, "I might've been one of the students who might've been rated lower" by the "personal" score used in Harvard's admissions process. This is a moving, wide-ranging conversation that goes deeper than most analyses of the admissions lawsuit. 

 

A transcript from the interview (the following was prepared by a machine algorithm, and may not perfectly reflect the audio file of the interview):

 

Marina Bolotnikova: Harvard's admissions process is on trial in a case that could decide the future of affirmative action and reshape college admissions across the country. Welcome to “Ask A Harvard Professor,” the show where we talk to some of Harvard's most interesting minds about the big problems confronting the United States and the world. I'm Marina Bolotnikova, and today I'm joined by Jeannie Suk Gersen who has been a professor at Harvard law school since 2006. She's been widely published on all sorts of legal topics from sexual harassment law, to domestic violence, to fashion and intellectual property. She's a contributing writer for The New Yorker where she's written some of the most astute analysis out there about the lawsuit brought against Harvard by Students for Fair Admissions, an organization alleging that Harvard's admissions process discriminates against Asian Americans.

In 2019, a federal judge ruled in Harvard's favor in the case, arguing that its use of race in admissions was lawful and not discriminatory. At the time of this recording in late September, 2020, the case is on appeal being considered by the First Circuit Court of Appeals. Welcome Jeannie Suk Gersen. We're so glad to be able to talk to you about this case.

Jeannie Suk Gersen: Thank you for having me.

Marina Bolotnikova: So before getting into the specifics of this case, I like to review the existing Supreme Court precedent on the use of race in college admissions. When is it constitutional to use race in admissions and when is it not?

Jeannie Suk Gersen: So, the Supreme Court has decided in a case called Bakke that admissions decisions can be inclusive of the consideration of race in certain circumstances, and that is when you are considering the entire applicant and many qualities about the applicant. So in a whole person evaluation where race is one of many facts about a person so that the entire basket of considerations might include race, but it would not be the overwhelming concern or a reason that someone could say that they were admitting someone and that it would not be in the form of a racial quota where you have certain targets, like certain percentage of racial groups. So basically you should not be using a quota. You should not be targeting certain numbers, but each individual should be considered as a whole person and that individual should be the entire basis for whether someone is admitted or not.

Marina Bolotnikova: So, it's okay to use race in a holistic whole person admissions process, but it's illegal to use race to create racial quotas or something tantamount to racial quotas.

Jeannie Suk Gersen: Exactly. The other thing that you cannot do is something called racial balancing, which is another way of saying you can't use quotas, but it's a slightly different concept, which is that you take the entire class, which is 100% and you look at how many of one race you've admitted thus far and then adjust based on that and say, "Oh, we need to admit more of this race and less of that one." So that kind of racial balancing is also considered illegal.

Marina Bolotnikova: Where does that distinction come from? Why is racial balancing considered bad while using race as part of a whole applicant process is okay?

Jeannie Suk Gersen: Well, I think that's a really deep question and the Supreme Court really thinks of it as discrimination that is unconstitutional, that is illegal, that is invidious if you are taking race to be a determinative factor in evaluating an individual, as opposed to just a plus factor in evaluating an individual. I think that the reason for that is really our American, very, very American culture of individualism, where we have an idea of merit that is extremely individualistic. That each person has a unique set of characteristics and they may come from certain groups, but they're not defined by the groups that they come from. That individual merit is about the opportunities that that individual is able to make use of and then using their own qualities and their own makeup and their own characteristics that they're able to make something of themselves.

I think that that's just a very, very American idea where we think of merit in such individualistic terms. There are other countries, of course, that do not really emphasize individualism in merit as highly as we do, as heavily as we do. In other countries we do see that quotas for gender and for groups in order to achieve a certain kind of balance and diversity in people who hold power, that's not such a radical idea. But in the United States, the idea of quotas are just really forbidden, not only by our law, but I think culturally it doesn't sit well in American culture.

Marina Bolotnikova: Yeah. I think that's a really interesting point. So, this lawsuit, Students for Fair Admissions, or SFFA, versus Harvard is widely talked about as a case that's about affirmative action. You wrote about two years ago in a New Yorker piece called, “Anti-Asian Bias, Not Affirmative Action is on Trial in the Harvard Case,” that, and I'm quoting, "It has served Harvard's interest for people to think that unless it wins this case, affirmative action will be eliminated. And that Harvard's treatment of Asian American applicants was necessary to attain an acceptable level of diversity among its undergraduates." And you conclude later, "If veritas demands finding that Harvard has in fact engaged in discrimination against Asians, one can safely root against Harvard and in favor of race conscious affirmative action at the time." So I know quite a bit has happened in this case since you wrote that piece, but I'd love for you to unpack what you were saying there and what is the right way to understand what is and isn't at stake in this case.

Jeannie Suk Gersen: Great. So at the time of the trial, certain issues had been winnowed out of what the trial was going to focus on. So when the trial actually occurred, what was on trial literally, what they were going to argue in court was not whether the Supreme Court case of Bakke or the jurisprudence of affirmative action was going to change. What they were arguing about in court at the trial was whether Harvard obeyed Supreme Court law when it did what it did in its admissions process. And in order to answer that question, you had to answer whether they had had racial quotas, engaged in racial balancing, and intentionally discriminated against Asian Americans. Those are three questions of fact that were actually being litigated at trial and that's in the district court. So at that point, there was no argument in court about whether affirmative action was illegal.

It was the question of whether Harvard had performed its duty under law to administer affirmative action consistently with what the Supreme Court had said was permissible. So that's why in reality, what was on trial in 2018 was not whether affirmative action had to go. It was whether discrimination against Asian Americans had occurred and whether Harvard in fact engaged in racial balancing and quotas contrary to what the Supreme Court had said was permissible. And now having dismissed that issue, which of course the plaintiffs did raise the broader legal issue of whether affirmative action should be permissible, the plaintiffs of course very predictably, and they knew this going in, had that issue dismissed from the case. The judge dismissed that issue from the case and it was put aside. Now what is going on as Harvard won the trial, and now it has been appealed to the First Circuit, the appellate court, and the First Circuit heard arguments last week.

And what that court is going to decide is also, they're going to review the district court's decision on basically the factual question, was there intentional discrimination that occurred against Asian Americans and did Harvard engage in racial balancing and quotas contrary to what the law provides. It's very interesting that in the oral argument, it was very clear that Harvard was arguing and all the parties that were in court arguing against SFFA, they were arguing that really the real goal here is to get rid of affirmative action as we know it. And that may in fact be the case that SFFA has that as its ultimate goal and that supporters of SFFA believe that that would be the correct result ultimately, but because of the way that the legal system deals with questions of law and questions of fact, and this ultimate legal issue is one that only the Supreme Court can change.

If anyone's going to deviate from what Bakke and other Supreme Court cases have said about affirmative action, it will only be the Supreme Court that can do that. And that can only happen after all of this litigation below is complete. So the First Circuit will not, there is no chance that the First Circuit is going to come out and say affirmative action can't happen. It is unconstitutional or illegal. That's not at stake right now. Although there are deeper stakes that down the line when you get to the Supreme Court, if you get this case to the Supreme Court, will that be an opportunity and occasion for the Supreme Court to revisit its Bakke decision and other decisions that it has rendered in the intervening years about affirmative action. And of course, that can happen so that if or when it gets to the Supreme Court in maybe a year and a half or two years, that that will be a chance for the Supreme Court to say, "We reverse ourselves and we no longer think Bakke is the way to go when it comes to race-conscious affirmative action."

Marina Bolotnikova: Great. A lot of the plaintiff's arguments in this case have hinged on the so-called personal rating that Harvard assigns to every applicant. What's your understanding of how the personal rating works and why is it such a central factor in this lawsuit?

Jeannie Suk Gersen: The personal rating, so I sat through the trial in 2018 and listened to the testimony focused on the personal rating from Harvard admissions officers. And it appears that there was some un-clarity about exactly how the personal rating works. But the basic situation is that students who apply get various ratings, chief among them academic and extracurricular and personal. The academic and extracurricular ratings are ones that you look at and they seem more objective to many observers because they involve numbers and scores. And the evaluation of extracurriculars may have some objective indicia, like were you the president of something, or are you nationally ranked in something? And when it comes to personality, there of course, isn't something like that. It's about Harvard admissions officer's evaluation, looking at the various information such as interview data or looking at the bunch of recommendations that people have written for the candidate and assigning a rating based on qualities that are desirable, like character and integrity and kindness and decency and helpfulness, and are you boring or interesting and that kind of thing.

As we all know, that is more subjective than other ratings. And the main controversy I think, centered around the fact that Asian Americans had higher academic and extracurricular ratings than white applicants, and yet had the lowest, as a group, the lowest personal ratings, certainly lower than white applicants. So to me, the comparison of white and Asian is really the relevant comparison for determining whether there was intentional discrimination against Asian Americans, because if they scored higher on many criteria, but namely the academic and extracurricular and then scored low on personal rating, you have to figure out why is that the case?

So, the options of course are that Asians do have worse personal characteristics than whites as a group consistently over years, not just in one batch. That that is one possibility. And another possibility is that there's discrimination, whether intentional or unintentional, that there's some kind of bias in the system and the bias could be on the part of say teachers who are evaluating high school students and writing recommendations that may not be as glowing in the personal category for Asian Americans as it is for whites. Or the discrimination or bias could be located in the admissions office at Harvard, where admissions officers are getting roughly similar levels of enthusiasm for Asian Americans from outside of Harvard, but then internal to Harvard they are ranking or depressing the personal rating for Asian Americans.

The reason the personal rating became important in this litigation is that if you took the personal rating out altogether, it looks like discrimination is at play because it's hard to explain why people with higher ratings on other categories would not be admitted at rates equivalent to whites. But if you put the personal rating in, then it seems like oh, well, they didn't score highly overall because you take all the ratings together and it makes sense that whites would have higher rates of admission than Asians. So the personal rating really was the crux of the case in effect.

Marina Bolotnikova: You have written so insightfully about your personal experience as an Asian American in elite admissions processes. In what I think was your first piece about the Harvard case for The New Yorker you wrote, "The application process for schools, fellowships and jobs always came with a ritual, 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." Could you talk about those experiences to the extent that you want to and how they've shaped your understanding of what's going on in this lawsuit?

Jeannie Suk Gersen: Yes. Thank you for that question. I think that reflecting on my own journey through these institutions, including Harvard, has informed my understanding of this case, has added some dimensions to my comprehension of what is really going on on some level. I think that I just want to note that probably at some point in my past, when I was younger, I might've been one of the students who might've been rated lower on the personal rating, in part because I grew up in a family that I don't want to say that is typical for an Asian immigrant family, because I think there's a lot of differences internal to Asian Americans. But I do know a lot of Asians who share my experience, which is that in our family we were not encouraged to be spunky and courageous and outspoken and outgoing and opine about issues.

All of those were disfavored in my family. To be sitting at a dinner table and share your opinion about some issue that you might feel passionate about, that was not rewarded in our upbringing. Other things were rewarded. So I do think that there is an issue here with cultural upbringing and how that may not be a great fit with what Harvard admissions officers define as great personal qualities and ways in which things like character and integrity may not be coming across that Asians may have character and integrity, but their way of communicating that may not be really ideal because of the upbringing. So I say this just fully believing that that is true in my case, and that my journey has entailed consciously understanding that gap probably at an earlier age than some Harvard applicants do.

I probably realized this younger than some applicants do and made a conscious effort, just like I would, if I went to a foreign country and had to speak the language there instead of just continuing to speak English. I thought of it that way. I thought of it as oh, now I'm entering admissions world and now this is the language I need to speak in order to translate what my qualities are. And I know that for example, my children will not have to do any such translation because the way that they were raised. They were raised essentially in Harvard world. So I really see the vast distance between different kinds of backgrounds and what they will produce in terms of people's personal presentation and their ability to communicate the right kinds of qualities, regardless of what is underlying them.

Marina Bolotnikova: Great. So the First Circuit Court of Appeals recently heard oral arguments in this case almost a year after Federal Judge, Alison Burroughs ruled in Harvard's favor, which was, that happened last October. What new information did we get from the oral arguments? What are the main takeaways?

Jeannie Suk Gersen: From the, you mean the oral arguments last week?

Marina Bolotnikova: Mm-hmm (affirmative). Yeah.

Jeannie Suk Gersen: Yeah. It didn't seem to me that the judges, the three judges were likely to overrule or overturn what the district court had done. I think that the district court decision of course was a victory for Harvard because that's the bottom line. Harvard won. Harvard did not lose. That is very important. However, I think the district court probably did a good thing in raising some issues and explicitly telling Harvard, "Look, your admissions process is not perfect and there are some things here, especially regarding the treatment of Asian Americans that I find hard to explain." But she didn't want to go all the way to saying that the explanation is intentional discrimination. She did go quite a ways, this judge, Alison Burroughs in saying that she thought it be due to implicit bias. It was very important that she mentioned implicit bias and told Harvard to check its process for implicit bias.

But implicit bias, even if it were determined to have played a role, would not mean that Harvard acted illegally because implicit bias is not intentional discrimination. So there was some part of the oral argument that did focus on implicit bias last week, where Harvard pointed out that implicit bias was something that hadn't been proven at trial, which is true. It had not been proven because there hadn't been really witnesses testifying about it. But to the extent that implicit bias is playing a role here in Harvard's admissions process, that is something that you can talk about. But even if you determined that it was implicit bias, it would not amount to Harvard losing this case because that's not intentional discrimination. So I think the oral argument continued the district court's ruminations or suggestions or speculations about possible problems in Harvard's admissions process that Harvard really should take a deeper look at. And my own belief is that Harvard is doing that. My own belief is that we already see an uptick in rates of Asian American applicants who are accepted to Harvard.

We started seeing that several years ago and Harvard is going to of course argue that that had nothing to do with anything having to do with the admissions lawsuit, that this is just the trajectory of the admissions cycles. Year after year there are changes. And that makes sense for them as a litigating position, but it would be very surprising if the admission suit hadn't caused them to really do some internal checking. I see the whole thing as a positive that there are more Asians admitted than there were in the past, and perhaps that will continue, perhaps it won't. We will see, but I think that in general, the oral argument confirmed much of what happened in the district court in terms of the important issues and the unlikelihood that Harvard will lose.

Marina Bolotnikova: Mm-hmm (affirmative). That's a really interesting point. You made about implicit bias because I think implicit bias is something that all of us hear about all the time now, right? And diversity trainings and anti-racism trainings, but if I have a implicit bias against Asian Americans, I assume that they have bad personalities, that would be unconstitutional. It would have to be intentional discrimination, which seems like a very high bar.

Jeannie Suk Gersen: It is a very high bar and that is a function of our discrimination law, which I think a lot of liberals would criticize. I think a lot of liberals would say it's really too bad that we have a discrimination law that set such a high bar for discrimination. So there could be lots of discrimination going on, but it still wouldn't be illegal discrimination. That's something that's going to work in Harvard's favor here, even though in general, it may be that liberals may want there to be a lower bar for proving discrimination in court.

Marina Bolotnikova: And another thing you talked about was how Harvard has started accepting significantly more Asian Americans as a proportion of each class since this lawsuit was filed. So just so listeners have an idea, the percentage of Asian American students admitted to the current freshman class, so the class of 2024, it was 24.5%, which is up from 19.7% in the class of 2018. On the one hand you could say, as SFFA has that, well, this is evidence that Harvard was unfairly keeping down the proportion of Asian American students before and now they are admitting more of them because they're facing a lawsuit over it. On the other hand, Harvard says, that's just evidence that of course they're not doing racial balancing of any kind, that the proportion of Asian Americans can and does vary. What do you think is a more reasonable interpretation between those from a judge's perspective?

Jeannie Suk Gersen: I think a reasonable interpretation is that whatever discrimination, if you postulate that there was some discrimination going on, if you were to accept that possibly there was some discrimination against Asian Americans, that whether it was intentional or unintentional, it was operative, especially when you compare the white and Asian numbers and rates, but that after the lawsuit began there was more conscientiousness, more care taken with that specific issue. Perhaps Harvard hadn't really deeply focused on that because obviously Harvard has many, many goals in its admissions process. Many of those goals are coexisting. And you have to admit a diversity. Diversity is a conscious goal and you have to achieve diversity in certain ways. And what we don't want, what I think none of us would want is for that diversity goal or whatever other goals Harvard has in its admissions process to fall most heavily or to disproportionately impact any racial group.

Harvard would not want that. Harvard would probably want, and I think we should all want whatever goals Harvard has to be impacting groups evenly. So therefore I think that the lawsuit probably did cause Harvard to take more care, to set certain policies more explicitly. I know that in one case, in writing for the first time Harvard said the personal rating had to be considered only in one place, which is the overall rating as opposed to affecting how you count the extracurricular or how you count the academics or how you count anything else. So the personal rating would be isolated to the overall rating rather than coming in at every other stage.

That was a written policy that Harvard produced after the litigation began. That surely is a good thing, that there's some clarity on this because I could imagine that you're an admissions officer balancing all kinds of factors and all kinds of things and juggling all kinds of things about each candidate and people from all over the world and different groups. It must be pretty dizzying and having some clarity about how to consider certain factors is, is a good thing. I think that the lawsuit probably forced Harvard to do some of that more clearly, and as a result, perhaps checking implicit bias and fighting implicit bias may be going on in a stronger way than it was before.

Marina Bolotnikova: So, there's been a lot of other information about Harvard's admissions process that's come to light throughout this case separate from just direct use of race. You wrote in a piece last year just after the district court ruled in Harvard's favor that the most important revelations of the Harvard trial were the vast privileges that were afforded, excuse me, to socially and economically advantaged, mostly white applicants within the whole person approach. Could you talk about what those are?

Jeannie Suk Gersen: Yes. I do think that at the trial, you can feel the energy in the room shift at any trial and this trial was no exception. You can feel the energy in the room shift as certain revelations are made and certain witnesses say certain things. And I do think one such moment was when it became clear that the rate of admission for a group that is known as colloquially, I guess, in the trial as ALDCs, that those people are admitted at eight times the rate of everyone else. That group together comprises a third of each class. ALDCs are athletes, legacies, children of donors and children of faculty and staff. So all of those students together who are admitted are a third of each class, and they're admitted at eight times the rate of other applicants. Now, that's a lot. That is a very, very significant portion of the class.

It is a very significant bump that you would get as an applicant if you are in one of those categories. So in a way, I think that the reason there almost was a shift of energy or gasp of recognition or surprise when people learned this coming out of the Harvard trial, is that it almost seems like that would overshadow considerations of individual personal ratings and evaluation of applicants based on race, especially since that group of ALDCs is disproportionately white. So I think that the judge in the district court case did mention that Harvard could deal with its goal of providing a diverse educational experience and having a diverse class. They could do that without using race in admissions if they just got rid of the preferences for ALDCs and say stop considering test scores.

Those are race-neutral means of achieving diversity and they could do that, but of course they choose not to, they want to have the ALDCs and then they want to create a diverse class using a different kind of admission system that would enable the coexistence of both the preferences to this privileged class and the affirmative action policy that they use.

Marina Bolotnikova: Mm-hmm (affirmative). Yeah, I was there at the trial too, and you're right. It was palpable, people's reactions to evidence about ALDCs. It's clearly a thing that strikes a lot of people as unjust, but is there any way that it can be addressed legally and the way that the use of race can or is it totally off limits?

Jeannie Suk Gersen: I think that the way that it can be addressed legally is for legislatures, either state legislatures or Congress to pass laws ending such preferences. And the reason that in theory can be accomplished is because the whole reason that Harvard is having to account for its admissions policy is because it receives federal money. Harvard is a private institution. It's not like the University of Michigan or the University of Texas and Harvard is receiving federal money and as a result has to comply with certain federal requirements. And if Harvard were to be regulated by laws that say you cannot have legacy admissions, for example, if you're going to receive federal money, that would have the same structure as laws saying if you're going to receive federal money, you can't discriminate on the basis of race. So that is a legal means.

Marina Bolotnikova: Great. What happens to this case next and what is its possible path to the Supreme Court?

Jeannie Suk Gersen: Well, the three judges on this panel will issue a decision, either affirming or reversing the district court's decision in favor of Harvard. At that point, of course, the losing party can ask for en banc rehearing, which means that the entire bench of the First Circuit would sit together, altogether, and hear the case again. So if they do ask for rehearing on that basis, and then it is granted, then we'll have another oral argument and another judicial decision from the en banc First Circuit. At that point, the losing party will file for cert to the Supreme Court. They'll file what's called a cert petition and the Supreme Court will decide whether to take the case or not take the case. The Supreme Court could, of course, just leave it, leave it alone and say we're denying cert, in which case whatever the First Circuit decides will remain in place.

A lot of people are assuming that it will go to the Supreme Court. I wouldn't be so sure about that, although it, of course could, it is very possible that the Supreme Court will want to wait until several such decisions are rendered. So Harvard is one, but there are other litigations that are currently going on that could play themselves out. Then when you have several decisions from different parts of the country and different circuits in the federal courts that might conflict with each other about what the Supreme Court's doctrine on this issue really means, then it would seem like the best time to take the case. But on the other hand, the Supreme Court could decide, okay, we don't have necessarily a conflict among the circuits, but the issue is still really important to decide right now and it is one that the public is extremely interested in. They could do that as well, but what I suspect is that they will wait until some more percolation of the issue in cases that are similar to the Harvard case.

Marina Bolotnikova: And obviously the future makeup of the Supreme Court is very much in question. So it's probably fruitless to speculate about an outcome, but it certainly seems like affirmative action is suddenly less likely to survive Supreme Court scrutiny. Does that sound right to you?

Jeannie Suk Gersen: Perhaps, yes, I do think so. I think even before the news of Justice Ginsburg's passing, it was already looking somewhat grim for the prospects of affirmative action because John Roberts does not appear to be a big fan of race conscious admissions, and he would have been the swing vote. So right now it's not looking great. On the other hand, will there be an outright overturning of affirmative action? That's a pretty drastic thing for the Supreme Court to do, to outright say no more race conscious admissions at colleges and universities, full stop. That would be very, very extreme. So it could be that even if it does reach the court somewhat soon that the court adjusts or clarifies or narrows the scope of the consideration of race and makes it even clearer what you can and cannot do and makes it harder for schools to pass legal muster in what they're currently doing. So that could happen. That would be in my view more likely to happen than an outright ban essentially on affirmative action.

Marina Bolotnikova: Mm-hmm (affirmative). Well, is there anything else I should have asked you about or anything you want to add?

Jeannie Suk Gersen: Let's see. I don't think so. I think these are great questions. Yeah.

Marina Bolotnikova: Yeah, we covered a lot. Thank you so much for joining us Professor Gersen. It's such a pleasure to talk to you.

Jeannie Suk Gersen: Thank you.

This episode of Ask a Harvard Professor was hosted by Marina Bolotnikova and the season is  produced by Jacob Sweet and Niko Yaitanes. Our theme music was created by Louis Weeks. This third season is sponsored by the Harvard University Employees Credit Union and supported by voluntary donations from listeners like you. To support the podcast, visit harvardmagazine.com/supportpodcast. If you enjoyed this episode, please consider rating and reviewing us on Apple Podcasts. Contact us with questions at harvard_magazine@harvard.edu

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