The Volokh Conspiracy - DOE Complaint Alleging Bias In Admissions Against Asian Students at Princeton

It will be interesting to follow this one. I remember many years ago reading an article in one of the newsweeklies (that I wished I had saved, but didn't), that contained a couple of startling bits of information. One was a quote from an official at one of the U.C. schools, I think it was Berkeley, protesting that "if we admitted students just based on their academic credentials, we'd wind up with 80% Jewish and Asian freshmen" (horrors!), or words to that effect (the 80% figure, along with the blatant acknowledgment that it would be problematic to have a class that's "too Jewish" and "too Asian" stuck in my mind). The other was that several Asian-American parents a year (this was in the 1980s) threatened to sue the U.C. system over discrimination in admissions, and the response of the system was to quietly admit these students to avoid litigation.

Anyway, here's the story:

Yale freshman Jian Li has filed a federal civil rights complaint against Princeton for rejecting his application for admission, claiming the University discriminated against him because he is Asian.

The complaint, which was filed with the U.S. Department of Education's Office for Civil Rights on Oct. 25, alleges that the University's admissions procedures are biased because they advantage other minority groups, namely African-Americans and Hispanics, legacy applicants and athletes at the expense of Asian-American applicants.

"We've been notified of the complaint and asked to provide information to the Office of Civil Rights, and the University will provide the Office of Civil Rights with the information that it has requested," University spokeswoman Cass Cliatt '96 said yesterday. "But I will say that we do not believe that the case has merit."

The case, first reported this weekend by The Wall Street Journal, injects new life into a longstanding debate surrounding affirmative action and whether race can or should be a factor in college admissions. Li's minority status adds a new twist to the story, however, since previous complaints about universities' racial preference policies have been filed by white students alleging bias.

Li cites a recent study conducted by two Princeton professors as evidence for his case. The study, published in June 2005, concluded that removing consideration of race would have little effect on white students, but that Asian students would fill nearly four out of every five places in admitted classes that are currently taken by African-American or Hispanic students. ...

Princeton maintains that its admission policies do not discriminate against Asian-American or members of any other race. "We treat each application individually and we do not discriminate on the base of race or national origin," Cliatt said. "To the contrary, we seek to enroll and do enroll classes that are diverse by a multitude of measures."

UPDATE: FWIW, my own view, expressed quite explicitly in You Can't Say That!, is that private universities have an expressive association right to engage in affirmative action preferences, so long as they defend such preferences as a part of an attempt to educate students in a pro-"diversity" message. I've reprinted the relevant excerpt below, for those who are interested. I haven't thought about to what extent my argument is mooted by the FAIR case, so critiques on that basis may be justified.

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Private universities could respond to such lawsuits by claiming an expressive association exemption to antidiscrimination laws. The administrators of many universities sincerely believe that their schools should teach students the importance of assisting disadvantaged minorities and ensuring racial diversity in the upper echelons of American society. Not unreasonably, the administrators believe that if the law prohibits them from using racial preferences, they will see their schools' classes become overwhelmingly white (and, increasingly, Asian American) and it will become far more difficult to promote their schools' egalitarian ideals to their students. Just as employing Dale would have diluted the Boy Scouts of America's anti-homosexual activity message, forcing private universities to adopt race-neutral admissions policies would dilute their pro-diversity messages. Moreover, a university that has a racially homogenous class—or faculty—inherently sends a negative or, at best, indifferent message to its students and the public at large about the importance of racial diversity. Engaging in explicit racial preferences to ensure a diverse student population sends the opposite message. To preserve racial preferences, universities can rely on Dale's dictum that the Boy Scouts of America has a First Amendment right to teach "by example," and argue that they too have a right to promote a moral vision unencumbered by government regulation. Conditioning federal funding of universities on the abolition of affirmative action preferences would place what constitutional scholars call an "unconstitutional condition" on that funding. Some legal scholars argue that the 1976 Supreme Court case of Runyon v. McCrary suggests that despite Dale private universities cannot claim an expressive association right to discriminate based on race. In Runyon, the Supreme Court rejected a freedom of association defense to a discrimination lawsuit against a whites-only private school. That opinion, and not Dale, is claimed by some to be the controlling precedent when expressive association rights conflict with laws banning race discrimination in education. This understanding of Runyon is mistaken, because the Runyon defendants did not advance an expressive association argument. Instead, they made a very short, throwaway argument that compelled integration violated their general right to "freedom of association." No such right appears in the Constitution, and the Supreme Court has never recognized a general right of association independent of any expressive goal. The Runyon defendants could have argued (but did not) that forced integration violated their First Amendment rights by impeding their ability to promote segregation to their students. Even that argument would have been problematic, however, because the schools involved in Runyon were organized on a commercial basis, and it is not clear whether commercial entities can claim expressive association rights. In short, the Runyon Court did not reach the issue of whether a noncommercial private school could successfully defend discriminatory policies as an exercise of expressive association rights. So, Runyon does not prevent universities from relying on Dale to protect their affirmative action programs from antidiscrimination suits.

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	[David Bernstein, November 16, 2006 at 12:16pm] Trackbacks DOE Complaint Alleging Bias In Admissions Against Asian Students at Princeton It will be interesting to follow this one. I remember many years ago reading an article in one of the newsweeklies (that I wished I had saved, but didn't), that contained a couple of startling bits of information. One was a quote from an official at one of the U.C. schools, I think it was Berkeley, protesting that "if we admitted students just based on their academic credentials, we'd wind up with 80% Jewish and Asian freshmen" (horrors!), or words to that effect (the 80% figure, along with the blatant acknowledgment that it would be problematic to have a class that's "too Jewish" and "too Asian" stuck in my mind). The other was that several Asian-American parents a year (this was in the 1980s) threatened to sue the U.C. system over discrimination in admissions, and the response of the system was to quietly admit these students to avoid litigation. Anyway, here's the story: Yale freshman Jian Li has filed a federal civil rights complaint against Princeton for rejecting his application for admission, claiming the University discriminated against him because he is Asian. The complaint, which was filed with the U.S. Department of Education's Office for Civil Rights on Oct. 25, alleges that the University's admissions procedures are biased because they advantage other minority groups, namely African-Americans and Hispanics, legacy applicants and athletes at the expense of Asian-American applicants. "We've been notified of the complaint and asked to provide information to the Office of Civil Rights, and the University will provide the Office of Civil Rights with the information that it has requested," University spokeswoman Cass Cliatt '96 said yesterday. "But I will say that we do not believe that the case has merit." The case, first reported this weekend by The Wall Street Journal, injects new life into a longstanding debate surrounding affirmative action and whether race can or should be a factor in college admissions. Li's minority status adds a new twist to the story, however, since previous complaints about universities' racial preference policies have been filed by white students alleging bias. Li cites a recent study conducted by two Princeton professors as evidence for his case. The study, published in June 2005, concluded that removing consideration of race would have little effect on white students, but that Asian students would fill nearly four out of every five places in admitted classes that are currently taken by African-American or Hispanic students. ... Princeton maintains that its admission policies do not discriminate against Asian-American or members of any other race. "We treat each application individually and we do not discriminate on the base of race or national origin," Cliatt said. "To the contrary, we seek to enroll and do enroll classes that are diverse by a multitude of measures." UPDATE: FWIW, my own view, expressed quite explicitly in You Can't Say That!, is that private universities have an expressive association right to engage in affirmative action preferences, so long as they defend such preferences as a part of an attempt to educate students in a pro-"diversity" message. I've reprinted the relevant excerpt below, for those who are interested. I haven't thought about to what extent my argument is mooted by the FAIR case, so critiques on that basis may be justified. (show) Private universities could respond to such lawsuits by claiming an expressive association exemption to antidiscrimination laws. The administrators of many universities sincerely believe that their schools should teach students the importance of assisting disadvantaged minorities and ensuring racial diversity in the upper echelons of American society. Not unreasonably, the administrators believe that if the law prohibits them from using racial preferences, they will see their schools' classes become overwhelmingly white (and, increasingly, Asian American) and it will become far more difficult to promote their schools' egalitarian ideals to their students. Just as employing Dale would have diluted the Boy Scouts of America's anti-homosexual activity message, forcing private universities to adopt race-neutral admissions policies would dilute their pro-diversity messages. Moreover, a university that has a racially homogenous class—or faculty—inherently sends a negative or, at best, indifferent message to its students and the public at large about the importance of racial diversity. Engaging in explicit racial preferences to ensure a diverse student population sends the opposite message. To preserve racial preferences, universities can rely on Dale's dictum that the Boy Scouts of America has a First Amendment right to teach "by example," and argue that they too have a right to promote a moral vision unencumbered by government regulation. Conditioning federal funding of universities on the abolition of affirmative action preferences would place what constitutional scholars call an "unconstitutional condition" on that funding. Some legal scholars argue that the 1976 Supreme Court case of Runyon v. McCrary suggests that despite Dale private universities cannot claim an expressive association right to discriminate based on race. In Runyon, the Supreme Court rejected a freedom of association defense to a discrimination lawsuit against a whites-only private school. That opinion, and not Dale, is claimed by some to be the controlling precedent when expressive association rights conflict with laws banning race discrimination in education. This understanding of Runyon is mistaken, because the Runyon defendants did not advance an expressive association argument. Instead, they made a very short, throwaway argument that compelled integration violated their general right to "freedom of association." No such right appears in the Constitution, and the Supreme Court has never recognized a general right of association independent of any expressive goal. The Runyon defendants could have argued (but did not) that forced integration violated their First Amendment rights by impeding their ability to promote segregation to their students. Even that argument would have been problematic, however, because the schools involved in Runyon were organized on a commercial basis, and it is not clear whether commercial entities can claim expressive association rights. In short, the Runyon Court did not reach the issue of whether a noncommercial private school could successfully defend discriminatory policies as an exercise of expressive association rights. So, Runyon does not prevent universities from relying on Dale to protect their affirmative action programs from antidiscrimination suits. (hide)