The Hypocrisy, and Unconstitutionality, of Affirmative Action Policies at Ivy League Universities

 

 

 

 

 

 

 

by Diane Rufino, November 22, 2017

As most of you may know, I take education very seriously. It is directly linked to the absolute right (fundamental right) to the pursuit of happiness, including the right to develop one’s talents and skills, and also to the absolute right of an individual to work and provide for oneself and one’s family. Education is a competition; the entire process is a competition. A child competes, through grades, first for the opportunity to take honors or higher-level courses. And then a teen competes, through grades, for a class ranking which is critical for application for the better colleges and universities. And then the graduating high school student competes, through credentials, for a spot at the college or university of choice. The better the student has competed in education, better the school he or she can get into. The better the college the student graduates from, the better the job he or she will get (and hence, better salary). This is how life works; this is how it has always worked.  It is fair because there is reason expectation involved and often those who achieve the most in education are the ones who worked the hardest, invested the most energy, or sacrificed the most. It is fair because it is absolutely color-blind and neutral to a whole host of factors. The system is, simply-put, a merit-based system.

A 2009 Princeton Study of ALL Ivy League schools and other leading universities, however, is revealed that the system of admissions is anything but fair and neutral. It is 100% based on race, which is unconstitutional, and 100% based on racial stereotypes, which is, in this day and time, audacious and outrageous. The Princeton Study revealed that at Harvard, for example, Asian-Americans had to score 140 points higher on their SAT’s than whites, 270 points higher than Hispanics, and 450 points higher than African-Americans to have the same chance of being admitted.  The findings on “Admissions Preferences” above show a similar scheme of discrimination and disenfranchisement: When an African-American applies to a leading university, he/she has 240 points added to his/her SAT score. When a Hispanic student applies, he/she has 185 points added. And when an Asian-Americans apply, 50 points is SUBTRACTED from their scores.

If this scheme isn’t predicated on stereotypes, then I don’t know what is. Notice there are insulting stereotypes (invidious stereotypes), as with African-Americans, and there are complimentary ones, as with Asian-Americans, but both are wrong. I don’t know if we can say there is a stereotype yet regarding Hispanics. For the most part, the great influx of Hispanics into our country has been fairly recent and there may be a language barrier that is a legitimate factor to assume they cannot score as high as whites or Asians. But being a new arrival to the United States should not guarantee you a spot at a top university.

Race-based affirmative action is patently unfair. To give one group a benefit, another group suffers a detriment. A decision to affect a group of people based on race is racial at the least, racist most likely at its core, and patently unconstitutional under the Equal Protection Clause of the 14th Amendment (or implied in the 5th Amendment Due Process Clause). A decision based on race is offensive, just as it is when it is based on gender, eye color, physical stature, or genetic predisposition to cancer. These decisions are based on characteristics that are immutable – characteristics that one is born with and hence cannot change. We hear the phrase: “You just have to make due with what you’ve got.” We all have to “make due with what we’ve got.”  As a one-time egg and a one-time sperm that by true happenstance came together, there was no putting a request in with the big guy upstairs for a particular set of characteristics. Our lives are the consequence of Biology (and yes, its many miraculous systems).

As I look at the results of the Princeton Study, and the attention it is now getting, I’m becoming increasingly angered at the term “White Privilege.” How does that work when Blacks and Hispanics are automatically given a hefty handicap on their SAT scores, thereby allowing them to “meet requirements” for a spot at a prestigious university when whites have to sink or swim on the exact score they earn. It sounds like the most important door they must walk through to start a career and find ultimate success in their lives is the door that most clearly dispels that myth. The ones pushing the “white privilege” narrative just happen to be the ones benefiting from the reverse discrimination scheme.  Not only is it an annoying display of hypocrisy but it shows just how ignorant they are of what is really going on in society.

A lawsuit filed in 2014 (Students for Fair Representation, Inc. v. Harvard) accused Harvard University of having a cap on the number of Asian students – the percentage of Asians in Harvard’s student body had remained about 16% to 19% for two decades, even though the Asian-American population had more than doubled (and become a larger percentage as a minority group). In 2016, the Asian-American Coalition for Education filed a complaint with the US Department of Education against Yale University, where the Asian student population had remained between 13% to 16% for twenty years, and against Brown, Dartmouth, Columbia, Cornell, and Princeton. The AACE urged the DOE to investigate their admissions practices. Furthermore, the lawsuit cites the 2009 study by Princeton sociologists that concluded that while the average Asian-American applicant needed a much higher SAT score to be admitted (1460 SAT score), a white applicant with similar GPA and other qualifications only needed an SAT score of 1320, while Hispanic applicants only needed a score of 1190, and African-American applicant only needed a score of 1010.

For many years, Blacks and Hispanics have benefitted from affirmative action. Now it has come to light that in order to benefit these minority groups, another minority group, Asians, have been harmed. Herein lies a novel constitutional question for the Supreme Court.

In 2016, the Supreme Court handed down a decision regarding affirmative action in the case Fisher v. University of Texas. In that case, the same group, Students for Fair Representation, sued the University of Texas on behalf of a white applicant over its affirmative action admissions policies. The Supreme Court reversed a lower court’s ruling, opined that affirmative action (for its aim in creating diversity in education) is one of the many factors that the school can use in its admissions policy, but must be used carefully and should be re-evaluated yearly, and then remanded the case back to the lower court with instructions to apply the high standard of strict scrutiny to the school’s race-conscious policy. Writing for the majority, Justice Kennedy explained: “Using race in the admissions process is acceptable if the program is narrowly tailored for the goal of greater diversity.”  The Harvard case is different because it focuses on affirmative action’s negative impact on a minority group and not on an individual. In fact, as several legal experts have cited, Justice Samuel Alito Jr. in his dissenting opinion in the Fisher decision, expressly pointed out (and advised?) that that Texas plan discriminated against Asian-Americans, and therefore could be a future theme to be pursued by opponents of affirmative action.

Alan Dershowitz, the famed Harvard law professor who successfully argued the Klaus von Bulow case before the Supreme Court and who was part of OJ Simpson’s “Dream Team” (defense team), echoed that same view following the Fisher decision. As he said: “The idea of discriminating against Asians in order to make room for other minorities doesn’t seem right as a matter of principle.”

Consider the case of Asian Jia, an Asian-American high school student from New Jersey who applied to 14 universities, including Harvard, Duke, Cornell, Dartmouth, Brown, Princeton, Columbia, Rutgers (his safety school), New York University, Georgetown, and the University of Pennsylvania. His SAT score was 2340 out of 2400, his GPA was 4.42 and he took 11 Advanced Placement (AP) courses. In addition to playing tennis, participating in the debate team and playing violin in the state orchestra, he did advocacy work for an Asian-American student group. He expected he had a pretty good shot at all the schools he applied to. However, he was rejected from Harvard, Columbia, Princeton, and the University of Pennsylvania (my alma-mater). Learning about the affirmative action policies at these schools, including the statistics asserted in the lawsuit, has left Jia feeling jaded. “I felt that the whole concept of meritocracy — which America likes to say it exercises all the time — has been defeated in my mind,” he said.

Luckily, the US Justice Department is now getting involved.  It sent a letter to Harvard University, dated November 17, advising it to turn over a variety of records that it had requested in September, including applications for admission and evaluations of students, by race. If Harvard continues to stall or refused to turn its records over, the DOJ has threatened to file suit to obtain those records. The federal government also potentially has the ability to influence university admissions policies by withholding federal funds under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.

Interestingly, the student group, Students for Fair Representation, a conservative-leaning nonprofit based in Virginia, has filed similar suits against the University of North Carolina at Chapel Hill and the University of Texas at Austin, asserting that white students are at a disadvantage at those colleges because of their admissions policies.

Steve Kurtz of Fox News posed this important question: “Many Americans of all types have serious moral problems with programs that judge people by their race. It’s not only an undesirable way to go about things, it also creates perverse incentives. When groups that underperform are, in essence, rewarded, while groups that outperform are punished, how will things change for the better?”  [“Is Harvard Racist? If You’re Asian-American, Their Admissions Policies Just Might Be,” Oct. 13, 2017]

In a country so focused on the very letter of the term Equal Protection, it is amazing to find that we very rarely live up to that true promise.

 

References:

Maxim Lott, “Rejected Asian Students Sue Harvard Over Admissions That Favor Other Minorities,” FOX News, Nov. 18, 2014.  Referenced at:  http://www.foxnews.com/us/2014/11/18/rejected-asian-students-sue-harvard-over-admissions-that-favor-other-minorities.html

Anemonia Hartocollis and Stephanie Saul, “Affirmative Action Battle Has a New Focus: Asian-Americans,” NY Times, Aug. 2, 2017.  Referenced at:  https://www.nytimes.com/2017/08/02/us/affirmative-action-battle-has-a-new-focus-asian-americans.html

Collin Binkley, “Feds Threaten to Sue Harvard to Obtain Admissions Records,” FOX News, Nov. 21, 2017.  Referenced at:  http://www.foxnews.com/us/2017/11/21/feds-threaten-to-sue-harvard-to-obtain-admissions-records.html

 

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About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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