Excerpted From: Jishian Ravinthiran, What Constitutes Fair Treatment of Asian American Applicants?, 26 Asian Pacific American Law Journal 1 (Spring, 2023) (323 Footnotes) (Full Document)


JishianRavinthiranStudents for Fair Admissions' (SFFA) lawsuit against Harvard University is one of the latest initiatives seeking to invalidate a university's use of race in its admissions program, this time with a novel twist: allegedly, Harvard's admissions program discriminates against Asian American applicants. The district court issued a decision in favor of Harvard, which was affirmed by the First Circuit. However, the newly composed Supreme Court is poised to end affirmative action in university admissions across the nation.

Scholars have depicted SFFA's claim that affirmative action discriminates against Asian American applicants as a pretext to accomplish conservatives' true goal of ending affirmative action in higher education. However, the lawsuit brings to the fore a longstanding concern that selective admissions programs are unfair to Asian American applicants. Even so, ending affirmative action will not remedy unfairness against Asian Americans. As scholars have underscored, other facets of admissions schemes will continue to disproportionately privilege white applicants compared to Asian Americans and other minority groups.

Defenders of affirmative action seeking to dismiss the allegations against Harvard point to statistical evidence that facially neutral criteria justify the admissions disparities between Asian American and white applicants. Through this uncritical use of statistics, defenders of affirmative action fall into a trap. They affirm a legal theory of discrimination that obfuscates how racial injustice causes Asian American and white applicants to differ in even facially neutral characteristics. The issue of which facially neutral criteria can fairly be used to explain admissions disparities must be addressed, or the longstanding controversy regarding the admissions of Asian American applicants (the Asian American Admissions Controversy) will never cease. This is because opposing parties looking at identical evidence of admissions disparities can disagree about which facially neutral criteria can legitimately be used to explain away such disparities.

To date, we only have a superficial understanding of the facially neutral admissions criteria that suppress the acceptance rate of Asian American applicants relative to white applicants. The reason: universities have historically guarded the operation of their admissions programs from public scrutiny, and this lack of knowledge hampers the public's ability to collectively engage with difficult questions concerning the fairness of any particular criterion for admission. Thus, the data disclosures in SFFA v. Harvard and the related statistical analyses are vital. They provide a unique opportunity to start a conversation about less conspicuous facially neutral admissions criteria that induce admissions disparities between Asian American and white applicants.

This Article proceeds in three parts to move us closer to redressing the unfair treatment of Asian American applicants. Part I contextualizes the Asian American Admissions Controversy and underscores why a proper understanding of this controversy focuses on identifying the unfair treatment of Asian American applicants compared to white applicants. It then draws on anti-subordination and sociological scholarship to advance a method of identifying unfair treatment that derives from facially neutral conduct. Part II uses the data from SFFA v. Harvard to demonstrate how admissions disparities are sustained by heretofore neglected criteria: the consideration of parental occupation, use of declared career interests, and procedures granting additional preferences for legacy applicants. Critically, this Part uncovers how each criterion is tied to the unjust sociohistorical treatment of Asian Americans. Part III concludes by advocating that we reinvigorate the public conversation about the Asian American Admissions Controversy to democratically engage with the complex, fraught project of determining fair metrics for selective admissions with respect to Asian American applicants. Based on how these conversations might unfold, Part III details possible reforms that admissions offices can adopt to address the unfairness of certain criteria. This approach stands in stark contrast to the legal initiatives that SFFA or other organizations in the future may undertake, which are ill-suited for promoting fairness in selective admissions. Ultimately, I seek to clarify the Asian American community's concerns about selective admissions without furthering the elimination of affirmative action policies that benefit groups with their own legacies of subordination in the United States.

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SFFA v. Harvard is part of a nearly four-decade long story about the barriers Asian Americans face in selective admissions, a chapter that underscores how facially neutral criteria cannot be divorced from the treatment of Asian Americans throughout our nation's history. Because of the complex normative judgments required for deciding whether and how criteria are inequitable and the impracticability of resolving such concerns in the courts, I have advocated for a public deliberative process for examining the fairness of supposedly facially neutral criteria sustaining disparities between Asian Americans and whites. This can guide universities in instituting reforms to their admissions process. Though the Asian American Admissions Controversy has proven intractable for the past forty years, I am optimistic that radically shifting the terms of the debate and furthering needed discourse across communities will help craft equitable solutions for future generations of Asian American youth pursuing their aspirations.

Jishian Ravinthiran is a graduate from Yale Law School, J.D. 2021 and McGill University, M.Sc. 2018, B.Sc. 2016.