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发帖数: 9 | 1 source: verdict.justia.com by Vikram David Amar 6/19/2015
Recent months have seen a great deal of pushback by some Asian American
groups against what they feel is unfair treatment in university admissions.
Prominent lawsuits alleging impermissible race discrimination by admissions
offices at Harvard and the University of North Carolina have been filed. And
last month a group of Asian American organizations registered a federal
complaint with the civil rights offices of the federal Departments of
Education and Justice asking for investigations.
It is too early to say where these litigations and investigations might
ultimately lead, and whether any universities will be found to have violated
the law; much will depend, of course, on the facts that are established in
these various proceedings. I make no predictions and express no views as to
the appropriate outcomes of these disputes. But even at this early stage, it
is appropriate to correct some fallacies of law and logic that have been
expressed by various critics of the individuals and groups who have been
raising complaints. In the space below, I identify and attempt to debunk
three flawed criticisms in particular.
Fallacy Number One: Discrimination Against a Group Necessarily Means Every
Member of the Group Has Suffered Tangible Harm From the Discrimination
Some defenders of the status quo seem to believe that if Ivy League and
other top universities are found to be illegally discriminating against
Asians or Asian Americans, this would mean that all applicants of Asian
ethnicity would be materially affected by such discrimination. For example,
in a Washington Post criticism of the lawsuit against Harvard entitled “The
Misleading Lawsuit Accusing Harvard of Bias Against Asian Americans,”
Julie Park, an Asian American assistant professor of education at the
University of Maryland, begins by saying that the alleged fact that “Asian
Americans [at Harvard] needed SAT scores that were 140 points higher than
white students” to be admitted “ought to earn me a spot in the disgruntled
‘Rejected by Harvard’ . . . association [given that] my 1520 SAT score”
and many extracurriculars would seem to have been sufficient for admission.
But if the list of disgruntled rejected applicants is reserved for those who
would have gotten in absent race discrimination, then whether Ms. Park has
cause to feel disgruntled is hard to know. Even if Harvard is shown, in the
aggregate, to have held applicants of Asian ancestry to a higher admissions
standard than white applicants, there are plenty of Asian Americans, even
with strong SAT scores, whose negative admissions outcomes were not, in fact
, caused by any such discrimination. Under the so-called “holistic review”
of college applicants that many private and public colleges use, scores,
grades and even extracurricular activities are not the only criteria for
admission. Interviews (for schools like Harvard, that use them) count, as do
letters of recommendation, a record of leadership and public service,
demonstration of having overcome obstacles, etc. So we would need to know a
lot more before we could ever decide whether the author of the Washington
Post essay, in particular, likely had her race used against her in an
outcome- determinative way, or whether she was rejected for one of many
other reasons. (It turns out that, in federal courts at least, plaintiffs
challenging the use of race by universities do not need to establish that
they are disgruntled in the sense that they would have been admitted absent
the use of race; the fact that a university improperly considers race at all
could infect the process, the Supreme Court has said, regardless of whether
the infection actually altered the admissions outcome of the person
bringing the challenge.)
I should point out here that the complaint filed against Harvard is replete
with stories of particular Asian applicants with high grades and test scores
and impressive extracurricular accomplishments, presumably to give the
complaint a human feel. (This may be why Ms. Park assumed that those
bringing the complaint were implying that the results in all these
individual instances were affected by Harvard’s policy toward Asian persons
.) But it is possible that many or all of these highly qualified folks would
not have been admitted to Harvard whether or not the University has a
policy or practice of discriminating against Asians, and thus may not have
cause to be disgruntled in an outcome-determinative sense. But, as explained
below, the individual stories are not the most important part of the
lawsuit; the aggregate data is.
Fallacy Number Two: Aggregate Numbers Are Unimportant Because Each Applicant
’s File Brings Unique Strengths
Ms. Park’s essay does explore the “holistic review,” admissions process,
a policy that explains why (as she rightly points out) “elite universities
[do not] have required scores for applicants” and that “meeting [
particular] requirements [will not] . . . guarantee acceptance.” So far, so
good. But it is where critics like Ms. Park go from there that seems wrong
to me. For Ms. Park, the fact that “many” applicants who have a “top
class ranking” and a “perfect or near-perfect” SAT score along with the
“appropriate extracurricular activities” will “be rejected” means that
Asians who have those attributes and who are not admitted can have nothing
to complain about. Her argument seems to be that because no individual—no
matter how strong her objective credentials are—is “guaranteed” a slot
under a holistic review admissions process, the disappointment Asians feel
about being denied admission is a product of “misunderstandings [in Asian
households] about how admission works at elite colleges[,]” rather than any
fault in the admissions systems themselves. But that reasoning is deeply
flawed. It is true that no one’s record “guarantees” admission. But if,
holding all other factors (e.g., extracurricular breadth and depth,
community service, strength of letters of recommendation and interview
performance) constant, Asians need to have significantly higher SAT scores
or high school grades than whites to be admitted to a university, there is a
big problem, both legally and morally, with what the university is doing.
Even though particular individuals may not be able to prove that
discrimination affected the outcome of their particular cases, if aggregate
data shows that Asians are subject to a higher admissions standard, then we
know that the process is being used to the detriment of at least some
members of the discriminated-against group. Use of such aggregate statistics
, and running regression analyses to control for all non-racist factors, is
precisely how discrimination cases of patterns and practices are proven. And
for defenders of the status quo to dismiss such alleged aggregate
disparities between different racial groups on the ground that no one,
regardless of her accomplishments, is “guaranteed” an admissions slot is
to disregard the essence and importance of anti-discrimination law.
Fallacy Number Three: Complaints by Asians Are Necessary Attacks on
Affirmative Action
All of this brings me to the third fallacy to which some critics of the
Asian complainant groups fall prey—that these lawsuits and protests are
best viewed as fundamental attacks on affirmative action programs that are
designed to increase representation of underrepresented groups such as
African Americans and Latinos. To be sure, some of the detractors of Harvard
’s admissions policies do prefer to do away with all race-based admissions
practices, including practices that are perfectly legal and appropriate
means of creating a critical mass of students from certain historically
underrepresented groups. (It also bears note, however, that some of these
same challengers also want to do away with other practices, like admitting
children of alums and applicants of families that have donated to the
university, that tend to account for some of the underrepresentation of
African Americans, Latinas and others.)
But, in fact, the recent complaints by Asian groups need not be understood
as attacks on the idea of affirmative action itself, but as attacks on
specific admissions policies (whether part of diversity-based affirmative
action programs or not) that impose undue burdens on Asian applicants vis-à
-vis white applicants. Whether or not affirmative action (i.e., the
consideration of race) to increase representation of African Americans and
Latinos (along with Native Americans and perhaps a few other groups) is
valid and worthwhile (as I firmly believe it is), it is hard to see why
Asian applicants, as a group, should lose out to white applicants with
objectively less strong admissions files. Whites, after all, are not a group
that has been historically (or currently) underrepresented, and there is
generally no absence of a critical mass of white students at any university
(even though the share of whites at some campuses has fallen.) Whites need
no special policies designed to help them gain access to overcome past
exclusion or to ensure they will matriculate in significant numbers. So if
the data the Asian groups allege is backed up (and I repeat that I don’t
know whether it is, but that should be the key question), then it would seem
that the universities in question have been guilty of Asian stereotyping or
, worse still, animus against Asians, neither of which should play any part
in a legitimate affirmative action regime. | f****t
发帖数: 2724 | 2 没翻译或是摘要几乎100%会被忽略，贴着里没有用 | u*****a
发帖数: 6276 | 3 打官司就看证据。证据不足就败诉。从目前已知的证据来看：
1）统计数据几乎没有用，因为十年前甚至四年前的统计数据，和该案的原告是否被歧
视，毫无关系，除非你说这个统计数据已经是铁证。（如果是铁证的话，还找什么原告
呀？）
2）ACT 满分，SAT II 满分的考生，比比皆是。很难说没被录取是被歧视的结果。以这
种失利的考生起诉哈佛，胜算不大。要不 BLUM 先生和赵先生联手，在华裔中造势，大
概就是想找一个更靠铺的原告。
发信人: uvachja (鹤立鸡群), 信区: Parenting
标 题: 被 BLUM 钦点的起诉哈佛和 UNC 的原告
发信站: BBS 未名空间站 (Fri Jun 12 13:39:52 2015, 美东)
The plaintiff is a group that includes two 18-year-old college students,
including an Asian-American male who was rejected by Harvard and a white
male who was rejected by UNC.
The student rejected by Harvard was valedictorian of a competitive high
school. He earned a perfect ACT score and an 800 on each of two SAT II
subject exams. At UNC, the rejected student earned a 2180 on the SAT,
including a perfect reading score, as well as an 800 in SAT II Math and SAT
II Physics. He also had a weighted GPA of 4.48 at one of the top high
schools in North Carolina. Both students participated in several
extracurricular and volunteer activities as well.
Students for Fair Admissions, which has about 70 members, also includes
prospective students of Harvard and UNC, parents of potential students and
individuals who have an interest in affirmative action. Blum declined to
name the students or the other individuals in the group at this time.
Legal counsel for the plaintiff is being provided by the anti-affirmative-
action group Project for Fair Representation, of which Blum is also the
president. |
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