By James McCusker
Students for Fair Admission, Inc., a coalition representing over 60 Asian-American organizations, has filed has filed a complaint with the U.S. Department of Education and the U.S. Justice Department, claiming racial discrimination by Harvard University. The administrative complaint echoes a lawsuit filed earlier in federal court by the same coalition.
Both the lawsuit and the administrative complaint allege that Harvard illegally discriminates by denying admission to highly qualified Asian-Americans applicants in favor of applicants of other races. Harvard denies this and says that its policies and procedures comply with the law.
Although there are parallels to other cases — the Bakke case in California, in which Harvard’s diversity policy played a role, and Fischer vs. the University of Texas Law School, among others — the Harvard case could prove to be very interesting.
The case has significant economic implications, and they go beyond the obvious value of a Harvard degree in the employment market. In fact they go to the heart of what economic opportunity means in our country and how the imposition of laws affects it.
Because Harvard’s diversity goals and admissions policies are at the center of the dispute, it would not be totally wrong to characterize the case as being equality vs diversity — and how those terms should be defined.
Our efforts to undo the wrongs of racial discrimination have always been dogged by logical paradox and conflicting legal goals. We have not been able to escape the underlying logic of our well-intentioned laws — best expressed by George Orwell in his 1945 allegory, “Animal Farm.” In it, restating a commandment, or law, he wrote, “All animals are equal, but some animals are more equal than others.”
In an expanding economy, when we can accommodate the policy on a large scale, the paradox lays low. If the economy stops or nearly stops growing, the logic of the zero-sum game emerges. No one can advance without others falling behind.
At most microeconomic organizations it was always a zero-sum game. There are a limited number of admissions each year at Harvard, for example. Currently, for every applicant admitted there are about 16 (actually, 15.7 on average) who are rejected. That is a lot of “small envelopes” mailed to disappointed applicants.
It is probable that no educational institution in America is more self-aware than Harvard University. To so many people it represents the gateway to a high-profile life of success and, in some cases, service. It is a visible representation of the American dream and that adds to the school’s responsibilities.
Because its classes are filled with so many of tomorrow’s leaders it takes diversity seriously, and it is justifiably proud of its efforts in this area over the years. By some measures of interpreted law, those diversity efforts have been not only admirable but also legal. These new charges, then, must sting.
Harvard pursues several types of diversity in its admissions: racial, cultural, economic, and academic preparedness are just the major ones. While its student body continues to be filled with the offspring of American aristocracy, over the centuries of the school’s existence it has opened its doors to all sorts of students, including some whose only qualification was that they were truly exceptional people. (Some were exceptional because they “…could really throw that football,” of course, but that is another story. They were still exceptional.)
The legal question in the current case is whether Harvard can continue to pursue this diversity in its own way or will it be forced to apply its admissions criteria uniformly to all applicants.
From the complaining Asian-American applicants’ point of view, the answer is clear. Because they have met and exceeded all of the admissions criteria, fairness demands that they should be admitted rather than being forced to give up their seat to someone who is considerably less qualified. That stings, too.
The federal courts can and will decide this case, but they cannot resolve the internal conflicts and logical paradoxes in the current law. When the Civil Rights Act and its companion, affirmative action, began to be enforced and implemented, it worked, because we wanted it to. Despite its contradictions and the heavy hand of the Federal bureaucracy, it appealed to Americans’ sense of fairness.
That was decades ago, though. The economy was still growing, and there was an easily identified minority needing a hand to redress past wrongs. Today the economy is stagnant and, by Census Bureau data projections, we will soon all be minorities. Equal opportunity seems more important in our economy and our thoughts.
Congress can do what the courts cannot. It is time for Congress to step up to its responsibility to straighten out the law, define its goals and eliminate its contradictions and internal conflicts.
James McCusker is a Bothell economist, educator and consultant. He also writes a column for the monthly Herald Business Journal.
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