Friday a judged cleared the lawsuit against Harvard to go forward, and the trial is set to begin October 15. The case, brought by Students for Fair Admissions, alleges that Harvard discriminates against Asian-Americans in its admissions. They point to some of the softer, more subjective parts of admissions that are meant to provide a broader look at students for holistic admissions as the way that they are kept out of the school. There are things like notes and ratings for likability and friendliness that can be open to bias. Edward Blum, the political activist behind SFFA, was also instrumental in Abigail Fisher’s Supreme Court case against U.T. Austin.

Last week we learned that Yale, Dartmouth, and Brown are also under Department of Justice scrutiny for discrimination against Asian-American applicants.

As the legal arguments around affirmative action make it toward the top of the national news feed, it seems like a good time to re-post my piece from this time last year, “What’s wrong with affirmative action?”.

If you're involved in college admissions from any angle, then you've given some thought to Affirmative Action, which means using race as a factor in deciding who gets admitted to a college or university. I want to talk about that.

First, let's get some common misperceptions out of the way real quick. Affirmative Action in college admissions does not mean using a quota system. A school cannot decide beforehand that they're going to end up with a class that's, for example, about 30% white, 30% Asian American, 20% Hispanic and 20% African American. Quotas were deemed unconstitutional by the Supreme Court in 1978. The Supreme Court has also said that schools must consider "race-neutral alternatives" before implementing race as a factor for admission. Even if a school has racial diversity as a goal, which many do and is constitutional, it must first try race-neutral ways to achieve that goal. You can read more about this here.

There are two recent cases that have received a lot of headlines and discussion. (We have to use "recent" in relative terms. In Constitutional Law world, a decade is pretty recent. These cases move slowly through the system.) One is a complaint filed with the Department of Justice in 2015 against Harvard by a group of 64 groups representing Asian Americans. That complaint--and a similar lawsuit--are about groups, not any particular individual. They claim that Asian Americans, on average, need to have higher SAT scores to get admitted to Harvard and other elite schools than students, on average, of other races. They also claim that the racial make-up of Harvard is pretty consistent over the years despite fluctuations in the racial make-up of applicants. All this points, they say, to Harvard essentially using a quota system, which is not legal.

The other recent high-profile case was Abigail Fisher's 2008 suit against UT-Austin, which got all the way to the Supreme Court in 2016. When Fisher was not admitted to UT-Austin, she sued them, claiming that she had been discriminated against because of her race. UT-Austin does use race as one of several factors in their admissions decisions, and Fisher had a higher G.P.A. and test scores than some other students who were accepted but are not white. The case went to the Supreme Court (twice, actually), and the Court ruled in favor of the university, not Fisher. They upheld the law that race is constitutional as a factor in admissions, and they said that UT followed the rules and stayed within the law.

Fisher, and other individuals who challenge their rejection because of possible race factors, thought that she deserved to be accepted to UT based on grades and past performance. She says so in this video: "It should come down to, you know, your grades and your activities, and whether or not you deserve to get in, and it should be based on merit, and it shouldn't be based on any other external factors."

The conflict over Affirmative Action is really about this notion of deserve. Who deserves to go to college, and what makes them deserving? Fisher's and other similar complaints--even, to a lesser degree, the Harvard complaints--have a past-centered view of deserve. They point to past achievements like grades and test scores to show that they deserve admission more than people with lower grades or test scores. This definition of deserving, which is so common it's often thought of as common sense, is the root of the "Am I Worthy" mindset. Students, parents, and schools worry a lot about grades and test scores, because GPA and scores are thought to indicate individual and group worth.

Universities surely share this mindset--they spend time worrying about numbers and rankings, too--but they temper this with a more future-centered view of deserve. Importantly, universities acknowledge that the supposedly fair and objective measures of worthiness aren't necessarily fair. Universities understand that SAT scores correlate strongly to the income and education level of a student's parents. They understand that grade inflation is higher at wealthier schools. So virtually every college in America looks at GPA and test scores, but they also make sure to look at other things. Most ask for essays or examples of student work. Many ask for interviews. Some take "demonstrated interest" into account. Some take "legacy" status into account. And some, but certainly not all or even most, also take race and socio-economic status into account. 

Universities look at all these other factors because they're just as interested in shaping the future as rewarding the past. They want a larger and more diverse talent pool than just the people who did well in the past. They think future success is built differently. The traditional notions of deserve just aren't as important to them. Because colleges know they are often the gateway to individual and social success, inclusion, diversity, and long-term justice may be as important to them--or more important--than the short-term common sense of taking the already-acknowledged success stories and moving them forward. Universities are reaching for ways--not always successfully--to balance past performance with future potential. This is, in the big picture, a good thing. A society cannot be robust or innovative or a world leader if it only rewards past success. It must also create future success. We need our universities to help us do this.

I'm sympathetic to individual students like Fisher who do what they're told to do for college admission success but then don't get what they were promised. None of us like being denied something we think we deserve, and we shouldn't expect Fisher or others like her to feel differently. Many people said some pretty ugly things about Fisher, and I wish they hadn't. For what it's worth, Fisher graduated from L.S.U. years ago and works in finance. She seems to be doing just fine.

But still, ultimately the colleges are right. Almost everyone wants to see more equity and equality in the world, but people are individuals who can only do so much to fix it. Large institutions like universities, though far from perfect, really can help with this problem if we'll work with them. Universities are big places where big things happen. Changing the way the world works is literally what they're there for. They need some room to try things out and experiment with outcomes as much as we individuals do. They're not just honor societies to recognize top high school students.

So what does this mean for high school students? In this world where Affirmative Action exists and race is sometimes a factor, what can you do? What should you do?

Believe schools when they say they use a holistic process for admissions. It's really common to act as though GPA, rank, and test scores are what really matter, and things like essays and background are just marginal add-ons. Please understand that schools are looking at the whole you, and do the very best you can with that.

Change what you can, accept what you can't. There are some things you can't do much about. Like your race, your geographical location, and your family's background. At least when it comes to college admissions, don't spend much time thinking about those things. There are things that you have more control over, like your grades and extracurricular activities. There are also things that seem pretty integral but that you can change with time and effort, like your motivations and reactions to setbacks. But these things, from your GPA to your attitude about life, are more difficult to change as time goes on. If you have a lower GPA than you want your 9th grade year, you can turn things around--if you have a low GPA your senior year then there's not much time to fix it. And there are some things that you can change quickly and drastically, right now. You don't have to finish your college essays until moments before you send them out, so there's time to keep improving them. Focus on the things you can still control at the moment. 

Never, under any circumstances, accuse another person of having what they have or getting what they get only because of their race. Do not assume that people of color are admitted to universities only because of their race. Yes, race may sometimes be a small factor, but it is never the only factor. Never assume a white person is admitted to a school only because they're white. Yes, white privilege is real, but even the most privileged white people still have much more to them than their privilege. Even if you want to fight racial injustice--in whatever way you want to define that--keep the big picture in mind and respect in your heart. Don't be nasty to people.

And whatever you do, don't let your college admission success define you as a person. You're much bigger than that, much more important. 

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