Academic journal article Harvard Law Review

The Harvard Plan That Failed Asian Americans

Academic journal article Harvard Law Review

The Harvard Plan That Failed Asian Americans

Article excerpt

In November 2014, Students for Fair Admissions (SFFA) filed a complaint against Harvard College in federal district court. (1) SFFA claims that Harvard discriminates against Asian Americans by holding them to higher admissions standards than any other racial group, including whites. (2) Because Harvard is an institution that accepts federal funds, it "violates Title VI when it engages in racial or ethnic discrimination [prohibited by] the Equal Protection Clause of the Fourteenth Amendment." (3) SFFA argues that Harvard's race-based admissions program is impermissible under Supreme Court precedent. Beyond that, SFFA urges "the outright prohibition of racial preferences in university admissions--period." (4) Ironically, the allegedly discriminatory "Harvard Plan" is the very one that Justice Powell held up as a model in Regents of the University of California v. Bakke (5) and the admissions program that American universities have emulated for decades. (6)

For the last thirty years, Asian admissions has been a hot topic. (7) Rumors, and sometimes concrete evidence, of racial discrimination and ceiling quotas fuel the controversy. The Princeton Review advises applicants that "an Asian-sounding surname" may be a disadvantage. (8) Asian parents, many of whom immigrated to the United States for their children's education, have staged protests outside of the Supreme Court. (9) And Pacific Islanders--traditionally classified with Asians under the label "Asian Pacific American"--have become so concerned about an admissions handicap that they have withdrawn from the Asian category to group themselves with Native Hawaiians. (10) Within the Asian American community, the topic of affirmative action can be divisive. While a vocal minority wants completely race-blind admissions, many more support affirmative action programs for underrepresented minorities. (11) Their objection is to "negative action," or unequal treatment in comparison to the white majority. (12)

This Note proceeds in three Parts. Part I considers the arguments that SFFA and other Asian American organizations have made, and provides a brief history of previous investigations and legal actions. Part II analyzes the Supreme Court's diversity rationale and argues that its development has been harmful for Asian students. Under the Court's affirmative action decisions, litigants like SFFA face an uphill battle. Part III returns to where it all started: with Justice Powell in Bakke. Through an examination of Justice Powell's notes and correspondence, this Note argues that his endorsement of the Harvard Plan was shortsighted and unwise. Even in 1978, the dangers of the diversity rationale should have been apparent.

I. ASIAN AMERICAN CHALLENGES TO ADMISSIONS POLICIES

A. The Evidence

Asian American groups have made similar types of arguments in past and current complaints alleging discriminatory admissions policies. Due to the inherent difficulty of proving racial discrimination, their arguments rely heavily on statistical evidence. Admissions data in the aggregate, they say, show that universities hold Asians to higher standards than all other groups. Doing so is the equivalent of applying race-based penalties to Asian applicants.

First, Asian Americans challenge the notion that they are overrepresented. The question of parity depends on the baseline for comparison: although Asians are overrepresented in relation to the general population, they tend to be the most underrepresented group when compared to the applicant pool. Studies show that Asians have the lowest acceptance rates of all racial groups. (13)

Second, complainants assert that the low rates of acceptance are especially egregious given that Asian Americans tend to be better qualified than the average applicant. This is demonstrable at least with regard to quantifiable academic qualifications. At the top range of SAT score-senders--from which selective institutions draw the majority of their students--around 50% are Asian. …

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