Did Colleges Discriminate Against Asians? The Court Didn’t Say.

The Harvard University law professor Jeannie Suk Gersen has been following the Students for Fair Admissions’ (SFFA) legal challenges to affirmative action closely — more closely, perhaps, than anyone else not directly involved. In 2022, as she explained in The New Yorker, where she is a contributing writer, she petitioned the district court to release sealed sidebar conversations between the judge, Allison Burroughs, and lawyers from both SFFA and Harvard. “Since the Supreme Court was considering a case that could significantly affect education, discrimination, and equality across the nation,” Gersen wrote, “I thought that the request would be easy to grant.”

It wasn’t. “To my surprise, Seth Waxman, who argued the case for Harvard, quickly objected on behalf of the university — the one that employs me as a tenured law professor, whose job it is to freely conduct research and pursue knowledge.” It emerged that one of the sealed sidebars included a racial joke by a government official, which, in Judge Burroughs’s words, “was clearly in poor taste” but not legally pertinent. When Gersen suggested otherwise, Judge Burroughs called her “greedy.”

Gersen did finally obtain the joke, a mock admissions memo “purportedly from an associate director of admissions,” which “parodied the admissions officer downplaying an Asian American applicant’s achievements":

The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132-pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. … After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

The joke is moderately amusing, and the fact that its author, Thomas Hibino, is himself Asian American perhaps mitigates any social distastefulness. But it doesn’t void the joke’s potential relevance to the case. In 2012, when he sent the joke memo, Hibino worked for the Office for Civil Rights. Here was a government official, under cover of parody, chummily appearing to confirm some Asian Americans’ worst suspicions about elite college admissions.

For the last several years, Gersen has been at pains to distinguish the claims of anti-Asian discrimination from the legal battle against affirmative action. We spoke with her about that distinction, about the logic of the court’s ruling on affirmative action, and about what colleges can expect next. Our conversation has been edited for length and clarity.

Len Gutkin: How are you feeling about this decision?

Jeannie Suk Gersen: As a supporter of affirmative action, I am not so thrilled. But it is not a surprise. I was a Supreme Court clerk in 2003; I arrived in the building a month after Grutter v. Bollinger, in which affirmative action was saved by Sandra Day O’Connor, a Republican appointee who was joined by four liberals in that decision.

Many lawyers who were watching the court then, myself included, have been surprised that it lasted this long given the tenor and tone of that case, which was begrudging about affirmative action even while saying that it could continue in order to enable schools to enroll a “critical mass” of underrepresented minorities. Affirmative-action law had all these caveats: You can’t do this; you can’t do that. The understanding in 2003 was: This is not going to last a long time, let alone forever.

Evan Goldstein: You’ve written that the SFFA case was about two issues, related but distinct. There’s the fate of affirmative action, and then there’s the question of whether Harvard discriminated against Asian Americans in particular.

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JSG: There’s been a conflation of two issues. One is: Should affirmative action continue? Can you continue to consider an applicant’s race in evaluating their application? Without the consideration of race, Harvard and the University of North Carolina made clear in their litigation posture there would be a drastic drop in underrepresented minorities. To address that underrepresentation, is it okay to consider race as a plus factor for applicants who are underrepresented racial minorities? Race would not be a plus factor for other groups, including overrepresented minorities or adequately represented races. Affirmative action means that you are affirmatively giving a plus only to those who are underrepresented.

That’s the first question, and that’s the question that the Supreme Court addressed. The plaintiff’s claim in that case was that this is discrimination on the basis of race against everyone who is not getting a plus on account of their race, whether white, Asian, or any other group.

The other claim that was the subject of litigation in the district court in Boston in 2018 was about whether Asians are discriminated against, not because of affirmative action, but because Harvard was preferring white students to Asian students. Why prefer white to Asian, given that white students were not underrepresented minorities?

In the Supreme Court case, the second claim was not directly addressed.

LG: The question of discrimination against Asians in favor of whites wasn’t addressed because it was rendered moot by the court’s decision on the first claim?

JSG: It’s not rendered moot. But the Supreme Court didn’t need to decide whether Asians were discriminated against in favor of white people in order to decide whether affirmative action needs to go. The Supreme Court left undisturbed the district court’s judgment that Asians were not intentionally discriminated against. The district court did say that there may have been implicit bias against Asians in the admissions process, but that’s not considered illegal discrimination in this context.

LG: In her dissent, Justice Sotomayor was adamant that discrimination against Asian American students had not been shown. And she wrote this: “There is no question that the Asian American community continues to struggle against potent and dehumanizing stereotypes in our society. It is precisely because racial discrimination exists, however, that the use of race in college admissions to achieve racially diverse classes is critical to improving cross-racial understanding and breaking down racial stereotypes … At bottom, race-conscious admissions benefit all students, including racial minorities. That includes the Asian American community.”

JSG: What Sotomayor said was a bit of hand-waving because she didn’t address the claim of Asians being discriminated against in favor of white applicants. The majority opinion didn’t address it either. The way the majority ruled, the plaintiffs could have been any students, white or Asian. Anything the majority said about Asians being disfavored wasn’t necessary to the ruling. The majority ruling was simply that if you consider someone’s race in selecting or not selecting them, that is a violation of the equal-protection clause and Title VI of the Civil Rights Act.

LG: So the justices could have just said, Look, as we see it, the Constitution prohibits this kind of thing, or Look, as we see it, the Constitution allows it. Why did they spend so much time in this sort of social-scientific mode, comparing admissions data between Asians and other groups, for instance?

JSG: It was not legally necessary, but it was atmospherically helpful to each side to marshal this data to support their own arguments: on one side, to suggest that it was because of affirmative action that Asians were being mistreated, and on the other side, to minimize the claim that Asians were discriminated against.

Both sides fell into the trap of conflating whether affirmative action is constitutional with the question of whether discrimination against Asians was shown. Both sides had an incentive to encourage that conflation. If you say that Asians are being discriminated against, then it seems like what you’re describing is morally wrong — and you should get rid of affirmative action to try to stop it. On the other side, if you say that Asians aren’t being discriminated against, and no one’s being discriminated against, then it seems like affirmative action isn’t hurting people. Both sides had an incentive to use the discrimination-against-Asians claim in a way that was legally unnecessary to the actual question the court was deciding.

I think that’s why you’re not seeing the white–Asian comparisons highlighted in the majority or the dissents. If I had written it, I would have said something like, What the evidence shows is that there are disparities in the treatment of white versus Asian that are really hard to explain, because whites are not supposed to be preferred vis-à-vis Asians, given that neither is an underrepresented racial group. But acknowledging that disparate treatment of white versus Asian applicants does not bear on whether the use of affirmative action for underrepresented racial minorities should be declared unlawful.

If Black students were preferred vis-à-vis Asians, I would have said, Yeah, that’s what affirmative action is supposed to be for. That’s not some shocking, weird, or discriminatory thing — that’s affirmative action, which was legal. You’re supposed to be able to prefer an underrepresented minority over an overrepresented or adequately represented minority. But if the evidence shows that white students are being preferred over Asians, that’s problematic. That’s not affirmative action. That’s something else — a covert quota, which was not allowed under affirmative-action law, or prejudice or bias, though I think that it could well be deep but unconscious bias, or stereotyping rather than purposeful discrimination.

EG: In the dissents and the discourse surrounding the case, is there a reluctance to take seriously the evidence of anti-Asian discrimination that came out during the trial in Boston?

JSG: Totally. And I do get why. The district court looked at all this evidence and said, “I don’t find intentional discrimination here. At most there’s implicit bias.” The way that got translated is, “There was no evidence of discrimination.” There was plenty of evidence of discrimination. It just didn’t, according to the district court, amount to intentional discrimination by the university.

EG: You followed this case for years as a journalist and a scholar. But you’re also a faculty member at Harvard. You attended the Boston trial; were you troubled by what you learned about Harvard’s admissions practices?

JSG: There were moments when the entire courtroom gasped at the evidence that was unveiled. One moment was when it was revealed that Harvard sent out recruitment letters to people who live in states like Nevada, Utah, Montana — “sparse country states,” in the Harvard lingo — states where you don’t have a lot of applicants. Harvard was recruiting for geographical diversity. But it used an SAT cutoff of 1380 for an Asian male, 1350 for an Asian female, and 1310 for white students to receive this letter.

Why is Harvard differentiating between whites and Asians in this way if it’s treating Asians and whites equally? There had to be some explanation. At trial, there wasn’t much of an explanation provided by the Harvard witness. In discrimination cases, requiring higher scores for a certain race is considered a classic form of discrimination.

I’m not at all troubled to see underrepresented minorities being admitted with lower SAT scores or grades than applicants from overrepresented groups. Again, that’s the point of affirmative action. But when it comes to white versus Asian, we don’t have case law saying that you can do that, or a sound reason to think that Asians should have to get higher scores than white applicants to be good candidates for admission. That was very revealing.

LG: It seems like what the admissions officers did is they race-normed SAT scores for each group, and then gave each group a floor that was a function of its average score. And they didn’t distinguish between underrepresented groups and adequately represented groups. Instead, they made “underrepresentation” as such a descending scale by mean group score, with Asians at the top.

JSG: That’s what it looked like. The correct way to have applied the Supreme Court precedents would have been to give underrepresented minorities a plus for race, but not to do so for white or Asian American applicants and not to prefer white over Asian American students.

The chief justice seemed to think that the universities were disobeying the precedents — that even without overruling anything, one could find that the precedents were not being obeyed correctly. Applying different standards for white versus Asian American applicants — effectively giving white applicants a boost relative to Asians — wouldn’t necessarily be in keeping with Grutter or any other Supreme Court case, since the rationale was to boost underrepresented racial minorities in order to pursue the benefits of diversity.

LG: Janelle Wong and Viet Thanh Nguyen have asserted that the notion that “Asian Americans have to score higher than other students to get in” is a “potent myth.” But you’re saying it wasn’t a myth — they did have to score higher than all the other students in the pool, including white students. Why did that become unsayable for supporters of affirmative action?

JSG: Was it unsayable? Was it a conscious effort to not say it? Was it an unconscious elision because it’s so inconvenient to grapple with? I don’t know. Again, for all of the reasons that affirmative action is morally justified and socially necessary, I don’t find it at all troubling that Asians, or white students, have to score higher than groups that are underrepresented. But if whites are being given a plus for their race over Asians — that’s not the way affirmative action is supposed to work. That’s because of some other desire to prefer whites over Asians.

LG: So it seems like having lower SAT floors for underrepresented groups, which had been permissible, was just sort of transposed to the Asian/white situation. The admissions officers discovered a statistical gap, and they did what they do when they discover a statistical gap: They normed it. It didn’t occur to them that it wasn’t how affirmative action was supposed to work.

JSG: Perhaps it didn’t occur to them, or perhaps it was troubling to think of a majority-Asian, as opposed to a majority-white, student body on campus. The affirmative-action cases were stingy about what exactly colleges could do and could not do, and I think it should have been clear that you can’t overtly prefer white over Asian on the basis of race. In the Harvard case, it becomes complicated because they said it’s not because of race, it’s because of the personal rating that Asian applicants got from admissions officers. Asians got low personal ratings compared to white applicants. The personal rating, which evaluates qualities like integrity, courage, kindness, and maturity, is not supposed to be a race-based categorization, but the plaintiffs claimed that it was a covert way to implement a quota on Asians. The district court said that it was more likely that Asian American applicants deserved those lower personal ratings than that Harvard discriminated against them.

LG: That seems more pejorative than if they had just said, Oh we were just norming based on scores.

JSG: It is more pejorative, but it’s more legal. It’s perfectly legal to say, We want to admit people with better personal ratings. That’s not race-based, on its face. Unless you go behind it, to the motivation, and find that race was motivating admissions officers to give Asians the lower personal ratings.

Would I be troubled if schools got rid of SAT scores altogether? Not really. There’s a robust debate about SAT scores, how much they reveal and whether they are discriminatory in themselves. I don’t have a strong feeling that SAT scores are needed in selective college admissions. If they got rid of that, the playing field would be set very differently.

Asians as a group have scored highly on SATs, but if that were gone, then Asians and everyone else would have to turn their attention to other things. They wouldn’t spend their time and money on improving their SAT scores. They would do something else, and then a new reality would shake out. In that new reality, will Asians do as well? In the Harvard case, what the evidence revealed was that Asians had the highest academic ratings, higher extracurricular ratings than whites, and same or higher interview scores than whites.

EG: Would getting rid of the SAT make the admissions process less transparent?

JSG: Yes, it would be less transparent. Getting rid of affirmative action also makes the process less transparent. With affirmative action, you’re explicitly giving a plus for race. In the post-SFFA era, you cannot give a plus for race, so you have to use race-neutral methods. Getting rid of the SAT is a race-neutral method, in that it does not involve consideration of an applicant’s race. If the SAT advantages Asians too much, such that it squeezes out other groups, I don’t think colleges will want to rely on it as much because methods that advantage Asians will make it harder to achieve racial diversity more generally. So I expect that colleges will be looking to change their admissions processes to de-emphasize the importance of measures on which Asians do well.

LG: Do you anticipate a bump in Asian enrollment rates at the most-selective colleges in the near future, or do you anticipate that they’re going to stay roughly where they are?

JSG: Colleges are putting out a lot of messages: “This will not change our values; this will not change how we do things except to comply with the law. This will not change our commitment to diversity.” If they’re serious about that, and if what they mean by diversity entails not having too many Asians, then they will have to do some things in the admissions process to make sure there aren’t too many Asians.

A lot of people point to the University of California system and Michigan, which have struggled to enroll adequate numbers of underrepresented minorities ever since those states got rid of affirmative action. We don’t have a lot of experience with that in terms of wealthy private schools like Harvard, which have more resources and therefore more options for pursuing the commitment to racial diversity in ways that don’t involve giving applicants a plus for race in the admissions process.

LG: This case only addresses admissions. What consequences do you expect for other areas — hiring; diversity, equity, and inclusion programs; scholarships; and so on?

JSG: Yes, this case only addresses admissions, and it only addresses Title VI and the equal-protection clause with respect to admissions. But equal protection applies to many things in life, not just admissions, and Title VI applies not just to schools but to any institution that receives federal funding, and Title VI is next to Title VII (the employment-discrimination statute) in the Civil Rights Act. Colleges are asking themselves: Do we want to be the guinea pig for the next lawsuit? Or do we want to play it safe and let another college stick its neck out and get sued? I don’t think many lawyers would advise them to assume that because this ruling only addresses admissions, they should just keep doing other things in which a person’s race is a conscious basis of decisions and wait to get sued.

EG: There must be a great deal of unease in general counsels’ offices, and an expectation that there will be more litigation to come.

JSG: For sure. This ruling has implications for every walk of life in which you tend to think about the racial diversity of the people you select.

EG: Shortly after the decision came out, several universities said they were changing how they administered scholarships that had considered race. Sounds from what you’re saying that’s not an overreaction.

JSG: That’s not an overreaction. If I were a lawyer advising a client, based on what the Supreme Court held, I would say that anything that suggests you’re making a decision based on someone’s race, you have to get rid of that. But I am not giving legal advice here.