RUTHFULLY YOURS

The judge in Students for Fair Admissions v. Harvard University has set a trial date of October 15. SFFA is the student group alleging—it filed its complaint more than three years ago—that the university discriminates in admissions against Asian-American applicants. Most observers expect the case will go to the Supreme Court, not least because of the question it asks: Why are Asian-American applicants to Harvard and other elite schools less likely to be admitted than less academically qualified whites, blacks, and Hispanics?

Coincidentally, the Center for Equal Opportunity has released a study of enrollment data trends for three selective schools—Caltech, the Massachusetts Institute of Tech­nology, and, yes, Harvard. Authored by Althea Nagai, a research fellow at CEO (where I have an affiliation), the paper bears the ironic title—not one the suing students would fail to cheer—“Too Many Asian Americans: Affirmative Discrimination in Elite College Admissions.”

Caltech doesn’t use racial references to admit students, while both MIT and Harvard do. Asian-American applicants to colorblind Caltech have proved so well qualified that they now win more than 40 percent of the seats in a class. Asian-American applicants to MIT and Harvard are no less qualified than those accepted by Caltech, and yet they are awarded many fewer seats than in the California school.

At MIT, says Nagai, after years of increases in the number of Asian-Americans admitted, a high-water mark of 29 percent was reached in 1995, after which the school saw a slow decline to 26 percent, where it remains today. At Harvard, Asian-American undergraduate enrollment increased to 21 percent in 1993 before dropping over the next few years to the level sustained since, which is roughly 17 percent.

Nagai takes those numbers as evidence that there is a “cap” or “ceiling” on how many Asian-American applicants MIT and Harvard will admit. She assumes there are such caps on Asian-American admissions at most elite schools and sees them as discriminatory and illegal. “Those who would have been admitted but for the ceiling have been discriminated against,” she says, “certainly as a matter of fact and most likely in a way that is not consistent with the constraints on such discrimination that the Supreme Court has established.”

A recent article in the Harvard Law Review cites studies showing that Asian-Americans have “the lowest acceptance rates of all racial groups.” At the same time, conventional indicators of academic merit show that they “tend to be better qualified than the average applicant.” That means, as the article says, that Asian-Americans must “perform better than all other groups to have the same chance of admission.” Which raises the question, how much better?

Research by the Princeton sociologists Thomas J. Espenshade and Alexandria Walton Radford helps provide an answer. Their study of preferential admissions at eight elite schools found that, to have such a chance, Asian-American applicants would have to score (on the “old” SAT) 140 points higher than white applicants, 270 higher than Hispanics, and 450 higher than black applicants, all other factors remaining the same.

Espenshade and Radford didn’t publish their book until 2009. But the probabilities of admission it reported are unlikely to have changed or we would know it. Whether Harvard was one of the eight schools the scholars studied we simply don’t know, as the colleges and universities refused to have their names disclosed. Harvard is now in full view, the defendant in a case of national interest, a key question in which is the extent to which Harvard has made it tougher for Asian-Americans than for other students to get in. Indeed, in its complaint SFFA cites statistical evidence showing that Harvard holds Asian-Americans to “a far higher standard than other students and essentially forces them to compete against each other for admissions.”

SFFA has little patience with the notion that the racial preferences used by Harvard are not large and just a “plus factor” in an applicant’s file, as the school insisted in the landmark 1978 Bakke case (which provided the diversity rationale for preferences) and still maintains today. Harvard’s racial preference, says the complaint, is “so large” that race becomes the “defining feature” of an application. “Only using race or ethnicity as a dominant factor in admissions decisions could . . . account,” says the complaint, “for the remarkably low admission rates for high-achieving Asian-American applicants.”

SFFA accuses Harvard of racial balancing, which almost no one says is legal. Somehow the school is able year by year to admit and enroll the same percentage of blacks, Hispanics, whites and Asian-Americans, even though, says the complaint, “the application rates and qualifications for each racial group have undergone significant changes over time.” SFFA sees the “remarkably stable admissions and enrollment figures” as “the deliberate result of system-wide intentional discrimination designed to achieve a predetermined racial balance of its student body.”

If SFFA is right about that, then Harvard has put a thumb on the scale to make sure the campus does not have “too many” Asian-Americans in a class.

Institutions that accept federal funds violate Title VI of the Civil Rights Act of 1964 when they engage in discrimination on the basis of race, color, and national origin. To prove that Harvard has run afoul of the law, SFFA is relying on statistical evidence while also preparing to argue that Harvard is guilty of intentional discrimination. The group finds evidence for that in the words of school officials who over the years have made prejudicial and stereotypical statements about Asian-American applicants—statements that assume Asian-Americans share “the same academic interests, experiences and personal attributes and that . . . as a group, lack certain qualities Harvard values.”

Since this case was filed, Harvard has responded by saying it does not discriminate against any racial or ethnic group. You’d expect it to say that. But the venerable school on the Charles River in Boston will soon have some explaining to do.