Today, the Asian American Legal Defense and Education Fund (AALDEF) and 44 Asian American groups and higher education faculty filed an amicus brief urging the U.S. Court of Appeals for the First Circuit in Boston to reject the claims that Harvard’s admissions policies intentionally discriminate against Asian Americans.
The lawsuit, Students for Fair Admissions (SFFA) v. Harvard, was filed in 2014 by a conservative activist committed to dismantling affirmative action. The plaintiff’s efforts are a blatant attempt to use Asian Americans as a wedge to attack diversity in higher education, which benefits everyone, including Asian Americans. After a three-week trial, the federal district court in a 130-page opinion found that Harvard’s race-conscious admissions policies are constitutional. SFFA filed an appeal, and AALDEF’s amicus brief urges the appellate court to confirm the findings of the district court.
Margaret Fung, AALDEF executive director, said: “Individualized admissions policies such as Harvard’s recognize the vast diversity within the Asian community, including differences in socioeconomic and educational attainment among different ethnic subgroups. Such policies prevent the perpetuation of the harmful ‘model minority’ myth.”
The trial court rejected SFFA’s assertions that Harvard’s consideration of “personal factors” in the admissions process was used to discriminate unlawfully against Asian Americans. SFFA argued that there was intentional discrimination because Asian Americans who score high on academic ratings, including standardized testing, should score equally as well on personal ratings. They argued that the ratings on personal characteristics have qualitative elements–not objective elements as in academic ratings–and therefore they are evidence of intentional discrimination. The district court rejected that argument and found that Harvard did not improperly use race in its personal ratings to intentionally discriminate against Asian Americans.
Moreover, qualitative criteria are used not only in the personal category but also in the academic rating category. The academic rating includes evaluation by Harvard admissions officers (the applicant’s high school’s characteristics, high school’s curriculum, and academic prizes), Harvard faculty members (appraisals of the student’s academic or written work), and the applicant’s high school teachers and counselors who submit letters of recommendation. There is no formula as to how these qualitative factors weigh in with standardized test scores and grade point averages to reach an academic rating.
Similarly, the personal rating involves a total evaluation of the applicant’s potential contributions to the Harvard community and beyond, both during enrollment and post-graduation. The admissions staff evaluate such characteristics as leadership, determination, and compassion, and collect information contained in teacher and guidance counselor recommendations, letters from other recommenders designated by the student, alumni interviews, and the student’s personal statement. The district court found no evidence that Harvard had improperly used race in its personal ratings to intentionally discriminate against Asian Americans. This finding is supported by the fact that not one of the 40 yearly evaluators of applications testified that Harvard had directed or used the determination of personal ratings to discriminate. As amici point out in their brief, it is illogical to assume that Harvard used qualitative factors to disfavor Asian Americans in the personal category yet use qualitative factors to favor them in the academic category.
The court also found that the analysis by SFFA’s expert witness was flawed because several groups of applicants were excluded from his statistical model: recruited athletes, children of Harvard College or Radcliffe alumni, children of Harvard faculty or staff members, and individuals on the Dean’s or Director’s interest lists (collectively, “ALDC applicants”). These groups together make up 1/3 of the admissions. As our amicus brief asserts, Asian Americans benefited more than any other racial group from the part of the admissions process that considered these ALDC applicants. There is no way to reconcile a factual finding of favorable treatment of Asian Americans in part of the admission program with an assertion of intentional discrimination against Asian Americans in another part of that program.
Rather than benefiting Asian Americans, SFFA proposed an alternate plan that favored students from lower-income families without consideration of race. Because there are more poor white Americans than poor Americans of color, white applicants would be the beneficiaries of such a class-based program, not the Asian Americans SFFA purports to represent.
Ken Kimerling, AALDEF legal director, said: “It is clear that Asian Americans were simply used by SFFA, whose agenda was not to help Asians but to oppose affirmative action for Blacks and Latinos. The trial court correctly found that Harvard had not discriminated against Asian Americans, and we urge the appellate court also to find in favor of Harvard’s race-conscious diversity admissions policy.”
Foley Hoag LLP is pro bono co-counsel representing the Amici.
In addition to AALDEF, 44 Asian American groups and higher education faculty are Co-Amici:
18 Million Rising
Asian American Federation
Asian American Psychological Association
Asian American Students in Action
Asian American Youth Leadership Empowerment and Development
Asian Americans United
Asian Law Alliance
Asian Pacific American Labor Alliance, AFL-CIO
Asian Pacific American Women Lawyers Alliance
Asian Pacific Islander Americans for Civic Empowerment
Chinese for Affirmative Action
Chinese Progressive Association
Coalition for Asian American Children & Families
Coalition of Asian American Leaders
Japanese American Citizens League
Leadership Education for Asian Pacifics
National Coalition for Asian Pacific American Community Development
National Korean American Service & Education Consortium
National Queer Asian Pacific Islander Alliance
OCA - Asian Pacific American Advocates
South Asian Americans Leading Together
Southeast Asia Resource Action Center
(Institutional affiliations provided for identification purposes only)
Stewart Chang - William S. Boyd School of Law., U. of Nevada, Las Vegas
Ming Hsu Chen - University of Colorado Boulder
Vichet Chhuon - University of Minnesota-Twin Cities
Gabriel J. Chin - University of California, Davis School of Law
Emily M.S. Houh - University of Cincinnati College of Law
Marina Hsieh - Santa Clara University School of Law
Tarry Hum - Queens College CUNY
Lisa C. Ikemoto - University of California, Davis School of Law
Anil Kalhan - Drexel University Thomas R. Kline School of Law
Pauline T. Kim - Washington University School of Law
Shirley Lin - New York University School of Law
Shirley Lung - City University of New York School of Law
Mari J. Matsuda - William S. Richardson School of Law, U. of Hawai’i at Manoa
Kevin Nadal - City University of New York
Philip Tajitsu Nash - University of Maryland at College Park
Natsu Taylor Saito - Georgia State University College of Law
Cathy J. Schlund-Vials - University of Connecticut
John Kuo Wei Tchen - Rutgers University - Newark
Scott Wong - Williams College
Margaret Y.K. Woo - Northeastern University School of Law
K. Wayne Yang - University of California, San Diego
You can download the amicus brief here.
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For more information, contact:
Ken Kimerling, Legal Director
Margaret Fung, Executive Director