Affirmative Action: Students for Fair Admissions v. Harvard

CLP Current Event: November 13, 2018

Is affirmative action a positive or negative concept? Learn more about the complaints filed against Harvard in this week’s Current Event!

Note: Due to the large fires in California, we are including a link to CLP’s Current Event on Fires from September 2018.

Brought to teachers by Susie Marcus, CLP consultant, with CLP staff.

News Sources

The Stakes for the Harvard Trial Are Higher Now That It’s Over, by Adam Harris, The Atlantic, November 2, 2018
“The main question is: If race is a plus for some students, is it also a minus for others? The plaintiffs argue that there is a racial penalty for Asian students. And they allege that implicit bias on the part of Harvard’s admissions officers when reviewing applications is the reason for that supposed minus.”

As Harvard admissions trial nears end, former president defends school, by Darren McCollester, NBC News, November 2, 2018
“She denied that Harvard discriminated against Asian-American applicants. She noted that 23 percent of Harvard’s current freshman class are Asian-Americans, up from around 3 percent in 1980.”

Harvard Discrimination Trial Ends, But Lawsuit Is Far From Over, by Carrie Jung, NPR, November 2, 2018
But the judge’s findings in this case will likely be followed even closer. “There is no set timeline for those findings; however, court watchers believe U.S. District Court Judge Allison Burroughs may release her opinion in early 2019. Both sides say they plan to appeal, which means the fate of affirmative action policies could once again end up in the hands of the Supreme Court.”

As Harvard Trial Winds Down, Admissions Director Takes the Stand – Again, by Eric Hoover, The Chronicle of Higher Education, November 1, 2018
“Lawyers for Students for Fair Admissions recalled McGrath to explain what they suggested was an apparent discrepancy in her testimony. When questioned two week ago, she said that the institution had no written guidelines for using race in its evaluation of applicants. But this fall Harvard did, in fact, give its admissions staff explicit guidelines on race for selecting the Class of 2023.”

What the Harvard Trial Is Really About, by Adam Harris, The Atlantic, October 15, 2018
“As the lawyers for the plaintiff shifted back and forth on who is the beneficiary of Harvard’s allegedly discriminatory admissions policies, the university toed the line that it is not treating Asian American applicants unfairly. ‘Harvard never considers an applicant’s race in the negative. If it considers race, it’s always considered in the positive,’ said William F. Lee, the lead trial lawyer for the lawsuit against the university. ‘The fact that it considers race in a positive doesn’t mean it’s negative in another case.’”

What you need to know about the Harvard affirmative action trial, by Max Stendahl, Boston Business Journal, October 14, 2018
“The suit was initially filed in 2014 by Students for Fair Admissions, a group affiliated with conservative legal activist Edward Blum, and alleges that Harvard systematically discriminates against Asian-American applicants. The case has the backing of the Trump administration, and could reshape the use of affirmative action in higher education if it winds up reaching the U.S. Supreme Court.”

Elite-College Admissions Are Broken, by Alia Wong, The Atlantic, October 14, 2018
“The college-admissions process, especially for highly selective, elite schools, incentivizes students to distort their identities to fit the profile they think the people reviewing their applications will find appealing. This dynamic becomes particularly problematic when it involves a student’s racial identity, whether that means over- or underemphasizing this background in an effort to seem more appealing to diversity-minded admissions officers.”

Questions to Consider

  • What is affirmative? What is action? What is affirmative action?
  • What is the opposite of affirmative action?
  • What does the 14th amendment say about affirmative action? What does the phrase “equal protection” mean?
  • Do universities consider race in their selection process? Why?
  • What is the purpose of affirmative action programs at public universities? Do you think this is a valuable purpose? Explain.*
  • What other categories might be used in selecting students? Does the selection process guarantee “fairness”?
  • What is the history of affirmative action?
  • How is past unfairness rectified?
  • How is affirmative action an advantage for both minority students and majority students?
  • Why might diversity be a plus for college classes and others?
  • Why are Asian Americans the focus of this case? Can the Asian American community be considered as a whole without referencing the various groups within its community?
  • What did the Midterm election results indicate about diversity? Democrats v Republicans, rural v urban, women v men, old v young, experienced political figures v newcomers
  • Which groups advanced and what difference will that make?
  • What constitutional problems do affirmative action programs have? What is the test that courts impose on these programs? Do you think the test makes sense? Explain.*

Background and More

Opinion: Affirmative action is worthwhile, but must be done with caution, by Natalie Oganesyan, Daily Trojan, November 6, 2018
“Affirmative action aims to level the playing field for all marginalized groups who have faced disadvantages due to socioeconomic and political inequalities. There is no doubt that institutions need to comply with this standard to ensure fairness and promote a rich learning environment.”

Is Harvard discriminating against Asians?, by Kevin Yuill, Spiked, November 5, 2018
“While the number of Asian applicants has increased dramatically in recent decades, the number of admitted students has stagnated. In 1993, about 20 per cent of Harvard students were Asian-American, and that figure has barely budged over two decades, even as the Asian-American share of the US population has grown rapidly.”

Liberal Hypocrisy in College Admissions?, by Nicholas Kristof, The New York Times, October 27, 2018
“More broadly, what happened to equal opportunity and meritocracy? They may be ideals rather than reality, but why defend a formal structure of hereditary privilege and monetary advantage in accessing top universities?”

The Curse of Affirmative Action, by Bret Stephens, The New York Times, October 19, 2018
“What distinguishes the Harvard suit from past legal challenges to affirmative action is that it shows that the people the policy harms aren’t privileged and unsympathetic white kids. The injured are other minorities.”

The Harvard Trial Doesn’t Matter, by Adam Harris, The Atlantic, October 18, 2018
“Harvard—despite at times shaky testimony from their admissions dean—is in the driver’s seat. Yes, it may be true that race is being used as a tip for some students, but the Supreme Court has said that such policies are permissible if the university has tried all other measures of diversifying.”

5 Harvard Friends, and a Frank Talk About How They Got In, by Kate Taylor, The New York Times, October 31, 2018
“For many freshmen at Harvard who have started school as a lawsuit challenging the university’s use of affirmative action in admissions plays out in court, the case has been personal. It has sharpened the usual freshman-year doubts about how they ended up among the less than 5 percent of applicants chosen from a pool of 42,749.”

What To Know About Affirmative Action As the Harvard Trial Begins, by Courtney Rozen, NPR, October 16, 2018
“Today in U.S. higher education, affirmative action refers to policies that give students from underrepresented racial groups an advantage in the college admissions process, said Mark Naison, an African-American studies professor who teaches about affirmative action at Fordham University. But that wasn’t the original definition when it was introduced by President John Kennedy in the 1960s.”

Opposing Views on Affirmative Action, by Orianne Montaubin and Andy Rougeot, The Harbus, January 9, 2017
The Case for Affirmative Action:
“Minorities now find themselves at an exponential disadvantage as they graduate high school and embark on the great American odyssey towards college education.”
Affirmative Action Hurts:
“Academic research has thus far focused on the negative impact affirmative action has on black students, but they expect similar results for other individuals receiving significant admissions preference, including children of alumni and athletes.  All these statistics combine to lower incomes, lower graduation rates, and lower satisfaction with their academic experience.”

Lesson Plans

Affirmative Action and the Courts, by Alan Shapiro, Morningside Center for Teaching Social Responsibility, November 7, 2011
CLP: High School

Affirmative Action and the Constitution, Bill of Rights Institute
CLP: High School

Affirmative Action in American Colleges after Fisher v. Texas, Constitutional Rights Foundation
CLP: High School

Constitutional and Legal Connections

Does the 14th Amendment Mandate Affirmative Action?, by Howard N. Meyer, History News Network, February 19, 2003
“The Fourteenth Amendment offered equality and justice. Along with the Amendment came several years of Freedman’s Bureau legislation. To undergird freedom special benefits–land, crop aid, grants–were provided for the freed by the same Congress that drafted the Amendment’s promise of Equal Protection of the Laws.”

Oregon Connections

Affirmative Action in Oregon, Ballotpedia
CLP: A wealth of information, great charts and statistics

Oregon State Social Science Standards

8.8 Evaluate information from a variety of sources and perspectives.
8.17 Examine the development activities of political parties and interest groups and their affect on events, issues, and ideas.
8.21 Analyze important political and ethical values such as freedom, democracy, equality, and justice embodied in documents such as the Declaration of Independence, the United States Constitution, and the Bill of Rights.
8.26 Examine a controversial event, issue, or problem from more than one perspective.
HS.28 Evaluate how governments interact at the local, state, tribal, national, and global levels.
HS.29 Examine the structures and functions of Oregon’s state, county, local and regional governments.
HS.30 Analyze the roles and activities of political parties, interest groups and mass media and how they affect the beliefs and behaviors of local, state, and national constituencies.
HS.33 Explain the role of government in various current events.
HS.35 Examine the pluralistic realities of society (e.g., race, poverty, gender and age), recognizing issues of equity, and evaluating need for change.
HS.59 Demonstrate the skills and dispositions needed to be a critical consumer of information.
HS.60. Analyze an event, issue, problem, or phenomenon from varied or opposing perspectives or points of view.

We the People Lesson Connections

Middle School, Level 2

  • Unit 6, Lesson 29: What are the rights and responsibilities of citizenship?
  • Unit 6, Lesson 30: How might citizens participate in civic affairs?

High School, Level 3

  • Unit 6, Lesson 33: What does it mean to be a citizen?
  • Unit 6, Lesson 34: What is the importance of civic engagement to American constitutional democracy?