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This bid seemingly pits one minority group against other minority groups. But SFFA has strategically combined two conceptually and legally distinct issues: an alleged Asian penalty and affirmative action writ large. If Harvard indeed discriminates against Asian Americans, that wrong could in theory be righted without tossing out affirmative action.<\/p>\n<\/div>\n
The case is rife with legal and statistical machinations that we and our students have been grappling with in our courses<\/a> at Harvard and Stanford University, where we teach. It also provides a prime example of two distinct theories of discrimination \u2014 disparate treatment and disparate impact \u2014 that underpin debates in education, criminal justice and beyond.<\/p>\n<\/div>\n SFFA v. Harvard by the numbers<\/p>\n<\/h3>\n<\/div>\n The numbers<\/a> are largely<\/a> undisputed<\/a>. Among applicants to the Harvard class of 2014 through the class of 2019, Asian American students had, on average, stronger academic and extracurricular track records than White applicants. <\/b>But whereas 80 out of every 1,000 White applicants were admitted, only 59 out of every 1,000 Asian American applicants were admitted \u2014 26 percent fewer.<\/p>\n<\/div>\n Story continues below advertisement<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n Part of this gap stems from higher admissions rates for athletes and children of alumni \u2014 so-called legacy candidates \u2014 who are disproportionately White. The remainder is explained by Harvard\u2019s consideration of factors such as geography, parental occupation and, most controversially, subjective assessments of \u201cpersonal qualities\u201d such as integrity and kindness, on which Harvard staff rated Asian Americans lower than Whites on average.<\/p>\n<\/div>\n Among the most academically prepared applicants, Harvard gave 31 percent of White students a top \u201cpersonal\u201d score but gave similarly high marks to only 23 percent<\/a> of Asian American students. Harvard\u2019s assertion that personal ratings are an unbiased measure of character requires accepting the idea that Asian American applicants have, on average, lower \u201cpersonal qualities\u201d than White applicants \u2014 redolent of corrosive stereotypes<\/a> often applied to racial and ethnic minorities.<\/p>\n<\/div>\n Allegations of disparate treatment<\/p>\n<\/h3>\n<\/div>\n Under SFFA\u2019s claims, Harvard\u2019s use of personal ratings would be illegal only if Harvard implemented them with an intent<\/i><\/a> to admit fewer Asian Americans, a possibility the university vehemently denies. This type of discrimination \u2014 which legal scholars call \u201cdisparate treatment<\/a>\u201d <\/i>\u2014 is what many people probably think of when they hear the word \u201cbias,\u201d with decisions designed to harm individuals based on their race, gender or other legally protected traits.<\/p>\n<\/div>\n Story continues below advertisement<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n In orchestra auditions<\/a>, candidates often play behind a screen to limit disparate treatment in evaluations. In our own work, to reduce disparate treatment in prosecutors\u2019 charging decisions, we built a \u201cblind charging\u201d algorithm<\/a> that automatically masks race-related information from police reports. The tool is now used by district attorneys across California<\/a>. In other research, we found<\/a> that Black drivers make up a smaller share of drivers stopped after sunset, when a \u201cveil of darkness<\/a>\u201d masks drivers\u2019 race, suggesting disparate treatment in officer decisions.<\/p>\n<\/div>\n Disparate impact: Another form of discrimination<\/p>\n<\/h3>\n<\/div>\n Disparate treatment, while important, is only one form of bias. Another legal approach examines what is called \u201cdisparate impact<\/a>.\u201d <\/i>This type of discrimination occurs if a policy imposes disproportionate burdens on marginalized groups without sound justification. Unlike disparate treatment, disparate impact need not involve discriminatory intent. U.S. law prohibits policies with a discriminatory impact in certain important contexts, including employment, lending and housing. But even in domains not covered by disparate impact laws, this theory of discrimination offers a useful lens for identifying policies that harm marginalized groups.<\/p>\n<\/div>\n Story continues below advertisement<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n For instance, in Nashville, the police department routinely stopped drivers for non-moving violations, such as broken taillights and tinted windows. We found<\/a> that this policy disproportionately affected Black residents, who were nearly 70 percent more likely to be stopped for non-moving violations than White residents. Nashville police touted this practice as a crime-fighting measure, but our analysis showed that it had little impact on burglary, robbery and other serious crimes.<\/p>\n<\/div>\n We concluded the department\u2019s actions imposed a discriminatory disparate impact on Black residents \u2014 disproportionately penalizing them with no clear crime fighting benefit \u2014 regardless of whether individual officers intended to discriminate. These findings, along with a sustained campaign by community groups, led Nashville to curb traffic stops<\/a> by nearly 80 percent, with little resulting change in crime rates.<\/p>\n<\/div>\n Disparate impact in college admissions<\/p>\n<\/h3>\n<\/div>\n The Harvard case raises similar concerns about disparate impact. If the university\u2019s stated preferences for legacy candidates and exceptional \u201ccharacter\u201d don\u2019t promote legitimate educational aims, the burden those criteria place on Asian American students could be deemed discriminatory, even if they weren\u2019t designed to exclude Asian Americans.<\/p>\n<\/div>\n Story continues below advertisement<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n Disparate impact claims in higher education are rare, and the SFFA lawsuit focuses exclusively on disparate treatment. But that may change. Under the Obama administration, both the Education and Justice departments appeared willing to investigate allegations of disparate impact in at least some educational contexts. Those efforts stalled under the Trump administration, but the Biden administration appears interested again<\/a>.<\/p>\n<\/div>\n Whether such practices risk legal action, universities that want equitable admissions policies might wish to consider broadening their definitions of discrimination to include disparate impact.<\/p>\n<\/div>\n The future of affirmative action<\/p>\n<\/h3>\n<\/div>\n The case raises legitimate questions about whether Asian Americans face barriers when applying to Harvard \u2014 and by extension, to other universities with similar practices. If Harvard does impose an \u201cAsian penalty\u201d \u2014 either intentionally or inadvertently \u2014 that could be rectified without dismantling affirmative action. For instance, Harvard could restructure how it uses personal scores or eliminate them entirely.<\/p>\n<\/div>\n Story continues below advertisement<\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n But SFFA<\/a> and Harvard<\/a> have repeatedly made the case a referendum on affirmative action. SFFA has invited the conservative justices on the Supreme Court to end a policy it disfavors. Harvard appears to be betting the court wouldn\u2019t so drastically reshape educational policy. The result could affect students for generations.<\/p>\n<\/div>\n\n
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