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  • Matthew Tsui

The Case of Affirmative Action in Harvard's Admissions System


The use of affirmative action in education admission systems has long been debated in history. Recently, the conservative organization, Students for Fair Admissions, led by Blum, recently petitioned the Supreme Court to hear their case against Havard College.[1] The appeal follows Judge Burrough’s local court ruling that Harvard’s admission policies do not intentionally discriminate against Asian Americans. If accepted, the case will be the first Supreme Court affirmative action case hearing since Fisher v University of Texas at Austin; since then, Kennedy has retired, Ginsburg is gone, and the Republicans have gained a 6-3 majority.[2] Thus, this case holds affirmative action ever so vulnerable, with the practice at risk of being shut down in higher education altogether.

They claim that the undergraduate admissions policy implemented by Havard unlawfully discriminates against Asian Americans. Specifically, they argue that Harvard implements a soft racial quota, which results in an exceptionally high rejection rate for Asian Americans, and allows for less qualified members of minority racial groups (Hispanic, African American, and Latino) to enter. They argue that Havard’s soft quota isn’t in line with the 14th amendment rights of the applicants guaranteed by the Equal Protection Clause.


Harvard and many top universities implement a holistic application process; they rate each student based on six dimensions: “academic, extracurricular, athletic, school support, personal, and overall ratings.” While the first few dimensions are largely race-free, admission officers will consider race in the personal and overall rating sections. Specifically, in brief in Regents of University of California v Bakke, Havard revealed the role of race in admissions; after the group of applicants were split into three groups, the middle, “possible” group were checked on “personality,” and those with desirable aspects were given “tips.” While alumni interviews determine that Asian American personality scores will be pretty similar to other racial groups, the 40-officer committee consistently gives them the worst score out of all of the racial groups. These low personality scores result in far lower admission chances for Asian Americans. For example, the Duke economist Arcidiacono notes that if a person had an identical academic, family, and extracurricular scores, if they’re Asian, they would have a 25% acceptance rate, compared to a white acceptance rate of 36% and an acceptance rate of 95% for African Americans.[3] The affirmative action policy is also crucial for maintaining diversity. In the Curiae brief, we project that African American representation would fall from 14% to 6%, and Hispanic from 14% to 9% if we eliminate such practices. The critical role that affirmative action plays in society is providing opportunities to racially discriminated groups, whose socioeconomic status may not have been on par with other racial groups, resulting in more roadblocks on the way to break out of their situation. There is no question that diversity is essential to society; therefore, if colleges eliminate affirmative action, students will be stuck in a misrepresentative bubble and not as ready for real society.

Finding a balance between “fair testing” while opening up opportunities for racially discriminated groups is a current issue that our society must tackle. Most recently, in California, Proposition 16, which proposed bringing back affirmative action, was rejected, and in New York City, the SHSAT is on the verge of being killed for the lack of minority representation in elite schools.[4] Thus, this is a monumental case that will dictate not only Harvard applicants but the entire US education system, as Title VI of the Civil Rights Act of 1964 states that the same restrictions apply to all of the institutions in the US.

The case against Harvard’s affirmative action practice largely relies on the claim that their non-specific-admission systems violate the rights of the applicants. As Justice Roberts states, the division of applications on the basis is a “sordid business” and will only destroy a democratic society. The constitution urges for equality and protects its citizens from discrimination; the Equal Protection Clause of the Fourteenth Amendment states that no citizen shall be denied equal protection of the laws. The US government has a long history of ensuring equality concerning public education. Plessy v. Ferguson strictly upheld that there is zero-tolerance for the division of American citizens by race. Brown v. Board of Education further vindicated the promises of equality, outlawing the use of race as a factor in determining educational opportunities. While Harvard is a private institution and exempt from the constitution’s bindings, Title VI of the Civil Rights Act of 1964 further extended the same restrictions onto private institutions. Harvard’s affirmative action system is unconstitutional as it employs methods that disregard the rights of Asian Americans.

An affirmative action policy aims to open up opportunities for minority racial groups and thus achieve diversification of the student body. However, if discriminatory practices are used, such a policy is unconstitutional. Harvard’s policies are mistreating Asian American applicants by assigning them a consistently lower personality score, thus reducing their admission chances. While Havard may give an explicit point bonus for belonging to a specific race, the consistently higher scores in the personality aspect significantly increase the admission outlook for minorities, made evident by the drastic changes in admission races if the personality score was eliminated. As Harvard’s admission system consistently balances the racial demographics of the incoming class and doesn’t consider race-blind alternatives, we can conclude that Harvard is using race as an active factor rather than a last resort. Thus, per Gratz v. Bollinger, as Harvard’s system does not adequately employ case by case consideration, instead overwhelmingly admitting far more minorities, their use of the race factor isn’t specifically tailored to achieve diversity.

While not an explicit quota, Harvard’s decision to base how large the entering class should be on racial makeup is not in line with the constitution. Meredith v. Jefferson stated that the Jefferson system’s percent racial makeup rule violated the Fourteenth Amendment, as its broad goals could not be narrowly tailored. Suppose Harvard is choosing who to admit solely based on reaching their racial diversity goals. In that case, they clearly aren’t employing individual consideration and are thereby discriminating against Asian Americans and others who are “overrepresented.”



However, Harvard continues to defend its admissions system, claiming that it furthers its goal in providing the highest quality education to all students and does not actively discriminate against Asian-Americans.[1] Since its development in the late 1960s, affirmative action has been an integral part of the United States Education System. Universities employed affirmative action programs as a means to reduce racial inequality and exclusion in society. In current society, affirmative action is still used to reduce socioeconomic caused racial disparities and prepare students for the real world adequately. Affirmative action is accepted and constitutional; in Regents of California v. Bakke, it is constitutional as long as the system does not involve a racial quota rule. Because of the Equal Protection Clause, any race classification must pass the three-pronged test of strict scrutiny; the policy must be narrowly tailored to meet a compelling state interest and must be the most straightforward way of meeting that interest. As seen in Fisher v. University of Texas, affirmative action has passed the steps of strict scrutiny before. In the 1970s, Justice Powell stated that the sole justification for affirmative action was the state interest of maintaining a diverse class such that every member of the class benefits.

There is no question that without affirmative action, Hispanic and African American students would be far less represented. Thus, maintaining diversity through affirmative action is necessary as not only would students lack experience with minorities, but the US would be less militarily prepared due to a lack of minority officers (Reeder). Thus, on the basis of preparing its students for a pluralistic society, maintaining diversity is a compelling interest for Harvard University. Harvard has extensively studied race-neutral admission alternatives. However, the committee has found that none of the proposed alternatives could meet Harvard's diverse educational objectives while maintaining a high standard of academic excellence. Therefore, having exhausted all other options, it can be determined that affirmative action is the most straightforward method of achieving the benefits of diversity, thus meeting the requirements set by Fisher v. Texas.

Every applicant to Harvard is sorted into three pools: those above and beyond, those plausible, and the wholly outclassed group. The personal rating of each applicant is essential in determining which members of the "plausible" pool are admitted, as they reveal crucial information about the applicant's background, such as what opportunities and challenges they faced when they grew up. Each applicant is individually assessed on their fit for the university; there is no explicit use of a racial quota in the application process. Burroughs ruled that there was no use of a racial percentage in the lower courts, and extensive individual consideration was carried out. Therefore, Harvard's system is entirely in line with the precedents set by Grutter v. Bollinger, as they commit a clear, individual review of each application in which race is just one of many determining factors. Finally, Havard does not actively discriminate against Asian Americans; in fact, the percent of Asian American students has risen since 2010. Their backgrounds are also crucial towards maintaining diversity. Therefore, every part of Harvard's admission process passes strict scrutiny and thus abides by the constitution.


While Harvard is trying to provide opportunities to racial minorities and provide their students with a diverse class for better integration in society, their current affirmative action system may not be the optimal way of achieving this goal. One of the proposed reasons why African Americans and Hispanics are not as academically competitive is socioeconomics caused racial bias, result in a lower emphasis and opportunities for education. Numerous race-blind alternatives exist, and perhaps Harvard could tackle the issue by lessening the weights of the SAT scores or essay scores, both of which have seen a heavy correlation with socioeconomic status. Per Meredith v. Jefferson, it is unconstitutional for an institution to choose admits based on reaching a desired racial balance. Harvard’s method of achieving the same racial balance as previous classes is closer to a quota rather than a soft goal; thus, their affirmative action system isn’t in line with the precedents set by Regents of University of California v. Bakke and Gratz v. Bollinger. The consistently lower personality scores of Asian Americans compared to other races showed that Harvard was not employing individual consideration, thus unconstitutional. In fact, all of the students in the “plausible” zone’s admission was determined by their personal scores, of which race plays a large role. Most recently, the supreme court has decided that they will take up this case, and we will soon see the very scene of college admissions reshaped before our eyes.

  1. https://admissionscase.harvard.edu/

  2. https://www.oyez.org/cases/2012/11-345

  3. https://public.econ.duke.edu/~psarcidi/realpenalty.pdf

  4. https://ny.chalkbeat.org/2021/4/29/22409927/few-black-latino-students-admitted-specialized-high-schools-2021

  5. https://news.bloomberglaw.com/us-law-week/high-court-seeks-biden-views-on-harvard-affirmative-action-case







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