Excerpted From: Patrick Hornbeck, Implicit Bias Against Asian Americans: A Blind Spot in the Harvard Admissions Case, 52 Journal of Law and Education 123 (Fall, 2023) (290 Footnotes) (Full Document)

PatrickHornbeck“[T]he record shows that Asian student applicants get the lowest personal scores of any other group. What accounts for that? ... It has to be one of two things. It has to be that they really do lack integrity, courage, kindness, and empathy to the same degree as students of other races, or there has to be something wrong with this personal score.”

So observed U.S. Supreme Court Justice Samuel A. Alito, Jr. at oral argument in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the case in which the Supreme Court struck down Harvard's race-conscious undergraduate admissions process and narrowed, if not eliminated, the use of race as a factor in higher education institutions' admissions decision-making. Justice Alito's comment echoed, nearly word for word, an argument the advocacy group Students for Fair Admissions (“SFFA”) made throughout the course of its litigation against Harvard. As SFFA put it in one of its Supreme Court briefs, “Either Asian Americans really do lack 'integrity,’ 'courage,’ kindness,' and 'empathy.’ Or Harvard is discriminating against them. Because the first conclusion is racist and false, the second must be true.”

These are not, however, the only two inferences supported by the evidence about Harvard's race-conscious admissions process. To conclude that Harvard--and countless institutions like it--must have intentionally discriminated against Asian American applicants because admissions officers assigned them “personal scores” that on average were lower than the scores the officers awarded to other students overlooks the possibility that implicit or unconscious bias is afoot. In light of the Supreme Court's decision in Students for Fair Admissions, this Article explores the legal, social, and educational ramifications of implicit bias in the college admissions process, focusing on one of the elements of that process most susceptible to implicit bias--the writing and reading of recommendation letters. Although implicit bias may also affect how alumni and staff perceive the applicants they interview and how admissions officers assess what applicants disclose in their personal essays, this Article zeroes in on recommendation letters for three reasons. First, highly selective colleges and universities almost uniformly ask applicants to solicit recommendations from as many as three writers who taught and mentored them. Second, as the district court in Students for Fair Admissions found (and the Supreme Court did not dispute), these recommendations “inform[] perceptions about applicants across numerous dimensions”: academic, extracurricular, athletic, and personal. Third, there is an ample empirical literature showing that recommendation letters and other narrative assessments of individuals' strengths and weaknesses are vulnerable to the effects of implicit bias.

Part One introduces the concept of implicit bias, which while not without its detractors has increasingly been adopted in the natural and social sciences. Part Two takes SFFA's litigation against Harvard as a case study, describing why recommendation letters are one of the components of selective admissions processes that are particularly prone to the influence of implicit bias. Nevertheless, implicit bias received scant attention in all stages of the litigation against Harvard, as well as in SFFA's parallel lawsuit against the University of North Carolina (“UNC”), which the Supreme Court decided simultaneously with the Harvard case. Part Three asks, if implicit bias in the writing and reading of recommendation letters affects the judgments Harvard and its peers make, do Asian American students whose chances of admission suffer have any recourse against the colleges to which they are applying, the high schools from which they are graduating, or other actors in the admissions landscape? Because Part Three concludes that such allegations are generally not actionable, Parts Four and Five explore the steps that institutions of higher education and secondary schools could take to limit the impact of implicit bias in the writing and reading of college recommendations.

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It has cynically been observed that “[t]here is really nothing new to say” about race in college admissions, but theories and empirical findings about implicit bias offer a vantage that has largely been absent from recent litigation. Even had the Supreme Court not held Harvard's race-conscious admissions program unconstitutional, SFFA's lawsuit appears to have shown, at minimum, that unconscious biases may affect how secondary educators characterize the applicants whom they recommend for admission. Given the persistence of stereotypes concerning Asian Americans, it is not unreasonable to fear that implicit bias hampers Asian American students' prospects at the most selective universities. These observations run counter to the stark choice Justice Alito and SFFA presented at oral argument: that intentional discrimination is the only plausible, non-racist explanation for Asian American applicants' seeming underperformance. Instead, this Article has argued, recognizing that implicit bias is not an insignificant factor in several components of college admissions--recommendation letters in particular--may be an important step toward producing more equitable outcomes in the aftermath of Students for Fair Admissions.

This Article has also argued, however, that courts are not well positioned to take this step. Instead, colleges and universities and, to a lesser extent, secondary schools, must lead. Absent drastic action like admitting qualified students purely by lottery, it falls to admissions officers to ensure that processes with inherently subjective components do not perpetuate or exacerbate racial inequities. Because these officers have assumed a gatekeeping function, choosing who benefits from the advantages that prestigious degrees confer, they have substantial influence with educators who recommend their students. Colleges will likely achieve compliance, however grudging, with anti-bias measures they demand of teachers, guidance counselors, and alumni/ae interviewers.

In the Harvard case, both the district and appellate courts made clear that institutions of higher education have no obligation to implement any of the suggestions this Article has offered. At oral argument, the Supreme Court justices appeared divided about the constitutionality of some proposals the Court's decision did not end up reaching, such as giving admissions preferences to candidates with personal attributes that are correlated with non-White racial identities. Now that the Court has handed down its decision, it will be for colleges and universities to explore what avenues for promoting racial diversity in their student bodies remain open to them. No doubt, the Court's holding will be refined in future litigation. But an overriding question will remain for institutions whose missions, like Harvard College's, incorporate a commitment “to strive toward a more just, fair, and promising world”: whether in this particular dimension of their operations they will find the courage and creativity to make those words a reality.

J.D., Fordham University School of Law, 2022; Law Clerk, Hon. Denny Chin, U.S. Court of Appeals for the Second Circuit.