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Students for Fair Admissions v. Harvard - Affirmative Action and Social Science

Compiled by Siqi Xu

Introduction: Harvard University's official admissions policy statement claims that

"the College considers each applicant through an individualized, holistic review having the goal of creating a vibrant academic community that exposes students to a wide range of differences: background, ideas, experiences, talents and aspirations."1

In a 2012 amicus brief submitted by Harvard to the Court in Fisher v University of Texas, the University further stated that its admissions policy was based on what the Supreme Court of the United States had previously held to be constitutional in Regents of the University of California v Bakke and Grutter v Bollinger.2

     Students for Fair Admissions now alleges that the very same admissions policy is in violation of Title VI of the Civil Rights Act of 1964 and has filed suit against Harvard. In its complaint, the SFFA contends that Harvard is discriminating against prospective Asian-American students through its “ethnically discriminatory policies and procedures in administering its undergraduate admissions program”.3 The SFFA has adopted a fourfold argument. Firstly, it argues that the ‘holistic’ review upheld in by the Supreme Court in Bakke is being used to disguise intentional discrimination against Asian Americans.4 Secondly, it argues that Harvard is using racial balancing.5 Thirdly, the SFFA alleges that race is a determinative factor in a prospective students’ application as opposed to merely a ‘plus factor’.6 Finally, the SFFA asserts that Harvard would be able to achieve a diverse student body without using a race-conscious admissions policy.7

     In support of their complaint, the SFFA has submitted social science evidence in support of mismatch theory - a theory which posits that students who are benefiting from a race-conscious admissions program will perform less well in an elite university, like Harvard, because they were not as academically prepared.8 That being said, mismatch theory and the studies cited in the SFFA’s complaint can be critiqued, severely undermining the strength of its social-science-argument. Studies in support of mismatch theory suffer from methodological flaws and there have been studies which have found contradictory results. Additionally, the SFFA attempts to support its claim that Harvard is using a quota by looking at the racial composition of Harvard in comparison with other universities.

     Harvard itself, has not addressed the litany of social science evidence presented in the complaint (due to the case being in its early stages) but it can be expected it will argue that mismatch theory is sociologically groundless. In addition to that, Harvard will also likely refer to the social science evidence used in Fisher to demonstrate the benefits of diversity that flow from a race-conscious admissions program.

Legal Background

1) Affirmative Action and Strict Scrutiny

     Racial preferential treatment in the admissions process at universities and colleges falls in the category of affirmative action. In Adarand Constructors, Inc. v. Pena, the Supreme Court contended that “all racial classification, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”9 In Fisher v. University of Texas, by declaring that “[s]trict scrutiny requires the university to demonstrate with clarity that its ‘purpose or interest both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose,” the Supreme Court reaffirmed that strict scrutiny is the proper level of scrutiny for affirmative action programs.10

     In Grutter v. Bollinger, the Supreme Court stated that in the context of “all racial classifications imposed by government”—namely all affirmative action programs—strict scrutiny “means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.”11 The Court continued that “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative . . . however, [it does] require serious, good faith consideration of workable race-neutral alternatives . . . .”12

2) Compelling Governmental Interest

     Through the evolution of its affirmative action jurisprudence, the Court has carefully delineated exactly what governmental interests would qualify as compelling. As the Supreme Court noted in United States v. Paradise, “[i]t is now well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination.”13 The Court thus decided that “[t]he Government unquestionably has a compelling interest in remedying past and present discrimination by a state actor.”14

     In contrast, remedying past societal discrimination is not a compelling governmental interest.15 Although the legacy of slavery and racism has pervaded all aspects of our society, thus our attempts to remedy the racial minorities is aiming at placing them in the same position that they would be in if the centuries of discrimination had not occurred,16 the Supreme Court in Wygant v. Jackson Board of Education noted that societal discrimination alone is not sufficient to justify a racial classification.17

     An objective of affirmative action in the context of high education is enhancing diversity.18 As the Supreme Court decided in Grutter v. Bollinger that it is a compelling governmental interest for colleges and universities to create a diverse student body, thus it is recognized that enhancing racial diversity is a compelling governmental interest in the context of post-secondary education.19

3)Narrow Tailoring

     With regard to the concern that the means must be narrowly tailored in order to purse a compelling governmental interest, the Court has upheld that race can be used as one factor in the admissions process.20 In Regents of the University v. Bakke, while striking down University of California at Davis’ race conscious admissions policy, the Court noted that to achieve a narrowly tailored means, an admissions program could use race or ethnic background as “a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats.”21 Similarly, in Grutter, the Court upheld University of Michigan Law School’s admission program that “considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.”22 After reaffirming that strict scrutiny is the proper level of review for the University of Texas at Austin’s use of race as a consideration in its undergraduate admissions decisions,23 the Court eventually upheld University of Texas at Austin’s undergraduate admissions’ use of race as a “‘factor of a factor of a factor’ in the holistic-review calculus.”24 The Court further explained that the university’s “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.”25

     In contrast, some other race conscious means are not considered as narrowly tailored. In Bakke, the Court held that University of California at Davis Medical School’s set-aside of 16 slots, which found by the trial court as a racial quota26 for minorities students for an entering class of 100 was not permissible.27 In Gratz v. Bollinger, the Court held that University of Michigan undergraduate admissions’ policy that mechanically added 20 points to minority applicants was not narrowly tailored.28

How will Social Science Be Used in the Case?

1) Mismatch Theory: A Battle of the Briefs

    The Court’s use of social science to inform its affirmative action jurisprudence is not limited to research on the educational benefits of diversity. In the court filings available for SFFA v. Harvard, social science research already plays a prominent role in determining the benefits of affirmative action for minority students. This argument has appeared in other lawsuits regarding diversity in higher education; for example, during the Fisher II oral arguments in 2015, Justice Scalia drew some public censure 29 when he challenged the University of Texas at Austin’s (UT Austin’s) stance that black students would thrive at such prestigious universities, maintaining that:

[t]here are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. . . . They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them. . . . I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.30

     Although some politicians condemned Scalia’s comments,31 Scalia was referencing an amicus brief submitted in support of neither party by Richard Sander, an economist, UCLA law professor, and “leading scholar in the field of higher education,” expounding the controversial “mismatch theory.”32 Mismatch theory asserts that when schools use certain large preferences (such as race) to admit students, those students suffer adverse consequences, or “mismatch effects.”33 Although Scalia was accused of racism for his oversimplified summation of the theory, mismatch theorists may also strive to increase racial diversity in prominent professions, such as the law. Yet the theory suggests this outcome is better accomplished by abolishing racial preferences from university admissions.34 There are three types of first-order mismatch:

1. learning mismatch, in which the students that benefit from affirmative action learn less in class than they would at a school better suited to their academic preparation;

2. competition mismatch, in which the students that benefit from affirmative action are at a competitive disadvantage and earn lower grades; and

3. social mismatch, in which all students, regardless of race, tend to form friendships with students who perform at similar academic level.35

     According to Sander, mismatch theory is supported by a substantial and growing body of social science research; he states that studies confirm a direct causal link between large preferences and the damaging effects of first-order mismatch on minority students.36 Sander cites to multiple studies published in scholarly, peer-reviewed journals that conclude “the mismatch problem is real.”37 Another study conducted at the Air Force Academy in Colorado looked beyond correlational trends and assessed the effects of mismatch by creating experimental squadrons comprised of students with both strong and weak academic credentials and control group squadrons of randomly assigned students.38 The academically weaker students in the experimental squadrons had worse outcomes, isolating themselves with other underperforming students in accordance with social mismatch.39

     Furthermore, Sander references his own research from 2004.40 Using data from the Law School Admissions Council (LSAC), Sander concluded that “[a] student who gains special admission to a more elite school on partly nonacademic grounds is likely to struggle more.” Sander examined LSAC data on first-year GPA, which revealed that the black students who entered with lower grades are significantly more likely that white students to fall in the bottom decile of their law school class; Sander’s regression analysis indicated that this is a result of the disparity in students’ academic credentials when they enter law school, not the result of test anxiety or a general struggle with law school.41 Unfortunately, law school GPA continued to have ramifications throughout students’ legal careers. Through the LSAC’s National Longitudinal Bar Passage Study (LSAC-BPS), Sander found that black students in their sample were four times more likely to fail the Bar on their first attempt compared to their white peers; the best predictor of bar passage was a student’s law school GPA.42 In Sander’s After the JD study, which tracked approximately 10 percent of students who became lawyers in 2000 for 10 years, the second-best predictor of earnings was law school grades—not law school prestige.43 Although the differences in earnings was smaller for students who attended more elite schools, “the prestige benefits of affirmative action [did not] dominate the costs stemming from lower GPA.”44

     Ultimately, Sander determined that “racial preferences . . . end[] up hurting the chances that [black] students will actually get law degrees.”45 To Sander, any potential shortcomings of mismatch theory and its consequential policy implications are not caused by the research’s methodological issues but result from the inherent limitations in the data available—a problem perpetuated by the education establishment’s suppression of mismatch research.46 In his amicus brief, Sander pushes back on his critics who find the effects of mismatch “overblown,” arguing that the studies skeptics cite to have not been published in peer-reviewed journals.47

     One such mismatch critic, Richard Lempert, also submitted a Fisher II amicus brief, but in support of UT Austin.48 Lempert flatly rejects Sander’s conclusions. According to Lempert, not only has the research support for mismatch grown weaker, but he also criticizes Sander for excluding studies with findings that contradict mismatch theory from his amicus brief.49 Lempert references studies of undergraduate studies that have not found harm to minorities through academic mismatch.50

     Furthermore, Lempert maintains that the studies Sander cites are plagued with methodological flaws.51 For instance, that LSAC-BPS study may seem compelling, but the tier system that divided the schools has “fuzzy” boundaries and sorted schools into tiers in a manner that blurred the differences between the means of schools in different tiers.52 As a result, this study’s design disguised the strong performance of black students at top-tier schools, “almost all of whom graduate and pass the bar.”53 Indeed, Lempert argues that any statistically small discrepancies in bar passage rates are potentially attributable to confounds, such as the ability to afford a bar preparation course or the quality of the law school a student attended.54 Additionally, the Air Force Academy squadron study, in Lempert’s view, does not support the conclusions Sander draws: rather, a lack of middle-ability students in the experimental squadrons may have contributed to the social mismatch of the academically weaker students, and results only indicate these students did not clearly socially benefit from interaction with their more academically advanced peers.55 In complete contrast to Sander’s conclusions, Lempert asserts that any pervasive mismatch problem is one of “undermatch,” in which black students “attend[] schools that are less selective than those that could be admitted to.”56

     Another Fisher II amicus brief in support of UT Austin further highlights the methodological issues with Sander’s studies.57 Empirical scholars in social sciences and statistical methodologies reject mismatch theory for its lack of empirical validation: social scientists studying “the impact of elite educational institutions on student outcomes [have reached] conclusions directly contrary to those of mismatch.”58 The scholars also criticize mismatch theory for its dependence on unsubstantiated causal inferences.59 To draw causal inferences, research should use comparison groups that have similar preexisting characteristics to ensure that the differences in outcomes are based on the intended variable.60 But mismatch research draws from a sample of universities that all use some form of affirmative action and does not account for preexisting differences between students.61 Without a comparison group and such statistical controls, causal inferences are erroneous.62 The Court, the scholars maintain, should not base its affirmative action jurisprudence on such a methodologically shoddy foundation.63

     Although the Court found for UT Austin in Fisher II, mismatch theory has reappeared already in the SFFA v. Harvard court filings. In its complaint, SFFA argues that racial preferences’ mismatch effects damage those very minority students Harvard intends to benefit by thrusting them into an academic environment in which they will flounder.64 These deleterious effects of mismatch permeate students’ careers, with minority students at elite universities less likely to pursue their interests in academia due to academic mismatch.65 In support of these contentions, SFFA cites numerous studies, including Sander’s research.66 Harvard’s racial preferences in admissions, SFFA argues, directly counter the entire purpose of affirmative action to benefit minority students.67

     Conversely, in an amicus curiae brief in support of Harvard, students who have benefitted from Harvard’s affirmative action policies insist that the Court rejected mismatch theory in Fisher I and II, and that the district court should follow this precedent.68 These students contend that empirical research consistently demonstrates that minority students who attend universities that use race as an admissions factor “achieve higher grades, graduate at higher rates, and secure greater earnings than their peers at less selective schools.”69 According to the students, the Fisher II amicus briefs proved the methodological and inferential flaws in mismatch theory, and that subsequent, properly conducted studies have not found mismatch effects.70 Because the issue arose before the Court in its Fisher II oral arguments but did not factor into its opinion, the students maintain that the Court has “sounded [the] death knell” of mismatch theory.71

     SFFA v. Harvard may determine whether mismatch theory is truly dead or resuscitated. Ultimately, in light of the conflicting data in the briefs, the only safe assumption is that mismatch theory does not enjoy “a consensus in social science.”72 It is unclear if the court will be more receptive to mismatch theory, reject it outright, or due to its unsettled nature, take the advice of the empirical scholars of Fisher II, and simply refuse to rely on the mismatch research.73

2) Other Social Science Evidence

     Whilst mismatch theory was the crux of the SFFA’s social science evidence, it also submitted data in the form of statistics in its complaint. The SFFA alleges that Harvard’s population of Asian-American student proves that Harvard is intentionally discriminating against students on the basis of race.74 Asian American students have made up 15-18% of Harvard between the 2007-2013 despite fluctuations in application rates.75 The consistency of the Asian population, the SFFA claims, is evidence that Harvard is using a quota to keep Asian students at a certain level.

     The SFFA then points out that were Harvard to use a race-neutral admissions policy, the number of Asian students would dramatically rise.76 To support this claim, the SFFA draws attention to the California Institute of Technology (Caltech) which uses a race-neutral admissions policy. The Asian population at Caltech is significantly higher than Harvard’s with Asian-American enrollment making up 42.5% of the student population in 2013.77 A simple comparison between Caltech and Harvard may lead to misleading conclusions though. Caltech has a strong emphasis on science and engineering whereas Harvard offers a wider range of disciplines. It may be that there are racial preferences in subjects that cause Asian American students to be enrolled at a larger rate at Caltech than Harvard. That is to say that if Asian American students tend to have a preference for scientific fields of study, it could explain the gross disparity between the two colleges. That being said, there is still a disparity in Asian American enrollment between Harvard and the University of California at Berkley. Berkeley’s undergraduate program also has a focus on the sciences.

     Moreover, the Asian American population in a university is affected by more than just acceptance. Even if Harvard were to accept more Asian American students, it does not guarantee that Asian enrollment would increase. A variety of factors play into a prospective students decision to enroll at a particular university including but not limited to: where the college is, how far away from their family it is, tuition and financial resources etc. Simply put, the data in the complaint cannot give the full picture of why the Asian population is so lower (in comparison to Caltech and Berkley). The SFFA’s evidence here may appear convincing at first glance but it is insufficient to draw the conclusion of intentional discrimination.

Evaluating Racial Diversity as a Compelling Governmental Interest

     Notwithstanding the Supreme Court’s pronouncement that racial diversity is a compelling governmental interest, we want to explore whether racial diversity really is a good proxy for diversity of “experiences, outlooks, and ideas”?78 79

Study Methodology and Results
Mitchell J. Chang, Does Racial Diversity Matter?: The Educational Impact of a Racially Diverse Undergraduate Population, 40 J.C. STUDENT DEV. 377 (1999). Method: A national survey of over 370 four-year colleges and universities elicited responses from over 11,680 students “to examine the educational benefits associated with having a racially diverse student population.” Results: The findings suggest that when there is a diverse student body, one tends to find enhanced chances that students will socialize across racial groups and discuss racial issues.” And that “socialize with someone of another racial group,” and “discuss racial issues” have “significant positive effects” on four educational outcomes measure by the study: “retention,” “intellectual self-confidence,” “social self-confidence,” and “satisfaction with college.
Mitchell J. Chang, Racial Differences in Viewpoints About Contemporary Issues Among Entering College Students: Fact or Fiction? 40 J. NASPA 55 (2003). Method: In a national sample from 93 four-year institutions, over 5,000 students compared political viewpoints among racial groups. Results: There were significant differences in the average viewpoints about certain social, economic, and political issues differed by races.
Nida Denson & Mitchell J. Chang, Racial Diversity Matters: The Impact of Diversity-Related Student Engagement and Institutional Context, 46 AM. EDUC. RES. J. 322 (2009). Method: Two student surveys that were collected at two different time points. One was administered to full-time 1st-year entering students, the other was at the end of their 4th year. With a total sample 20,178 students in 236 institutions. Results: Students who interacted more frequently with other races or engaged with diversity (through coursework, cultural awareness workshops, or student organizations) tended to report higher levels of self-efficacy and self-change concerning general academic skills and racial-cultural engagement.
Patricia Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72 HARV. EDUC. REV. 330 (2002). Method: Researchers used data from two longitudinal databases and controlled for the racial composition of the high schools and neighborhoods, total SAT scores, and parental education as a measure of student’s socioeconomic background. Results: Students’ experiences with racial diversity and interracial interaction have a meaningful impact on “important learning and democracy outcomes of a college education.” Education is enhanced by extensive meaningful informal interracial interaction, which depends on the presence of significantly diverse student body.
Anthony Lising Antonio et al., Effects of Racial Diversity on Complex Thinking in College Students, 15 PSYCHOL. SCI. 507 (2004). Method: Integrative complexity (IC), “the degree to which cognitive style involves the differentiation and integration of multiple perspectives and dimensions,” was measured in small-group discussions at three universities. Results: Having a Black collaborator in a group of white participants stimulated greater IC; exposure to a minority opinion encouraged participants to better recognize the trade-offs among perspectives and solutions.

There are also publications do not support the contention that racial diversity can serve as a good proxy for diversity of experience, outlooks, and ideas.

In a 1998 article,80 the Timothy Hall contended that

[i]f intellectual pluralism is a state interest sufficiently compelling to justify a racial classification, then the characteristics that Justice Powell cites as possibly relevant to the achievement of this pluralism seem at best weak proxies for more immediately relevant characteristics, such as the viewpoints held by students on matters likely to be addressed in the academic environment.81

     When addressing the question “[w]hy would academic institutions interested in creating a diverse exchange of ideas emphasize their commitment to considering a variety of proxies, such as race and socioeconomic background, rather than the actual viewpoints and ideas held by would-be members of these institutions,”82 Timothy Hall mentioned that there would be various administrative difficulties in directly assessing candidates’ viewpoints, and the most prominent difficulty is misrepresentation.83 Because race is a readily verifiable proxy, it is not as likely be subject to the risk of misrepresentation then, for example, social disadvantage.84

    But, by citing Richmond v. J.A. Croson Co., 488 U.S. 469, 508 (1989), which stated that “the interest in avoiding . . . bureaucratic effort cannot justify a rigid line drawn on the basis of a suspect classification,”85 Timothy Hall noted that,

even if a direct inquiry into the viewpoints of students and faculty might entail some administrative difficulties, one would expect that an application of strict scrutiny to the use of race as proxy would require some concrete showing of these difficulties; and that the interest in avoiding administrative difficulties [by using race, for example, as a proxy] would fail . . . to satisfy heightened scrutiny.86

    Timothy Hall further pointed out that “[t]he religious affiliations of potential students or faculty are likely to be as significant an indicator of the kinds of intellectual diversity to which they might contribute as are their racial or ethnic backgrounds.”87 He also cited an article written by Eugene Volokh.88 In this article, Volokh observed that

[c]ertainly the notion that religion is a proxy for experiences, outlooks, and ideas is quite reasonable. One can make a strong case that religion, especially when devoutly observed, correlates with them at least as strongly as race or sex does. Devout religious upbringings carry with them experiences that secular upbringings do not; and even more importantly, religion is inherently tied to a particular outlook on the world and a particular set of ideas.89

and that “if religion means anything, it must mean that the devout of a particular faith tend to see the world through a lens quite different from that used by the secular, the less devout, or the devout of other faiths.”90

Thus, Timothy Hall contended that

[t]his variant treatment of race and religion can hardly be justified as constitutionally compelled. Both religion and race are suspect classifications. If the interest in diversity of viewpoint and perspective is sufficient to allow race-conscious admissions and hiring decisions it is sufficient to allow religion-conscious decisions that serve the same purpose.91

     In a 1997 article,92 Michelle Inouye argued that instead of giving racial minorities a “plus” factor, the admissions committees should give the socio-economically disadvantaged a “plus” factor.93 Inouye pointed out that one advantage of socio-economic plus factors as opposed to racial plus factors is that it does not even arguably violate the Equal Protection Clause, because the Constitution addresses concerns about immutable characteristics, which economic and social status are not. A program that treats socio-economic status as a plus factor, if ever challenged, would need only pass the rational basis test.94

     Inouye further noted that another advantage of socio-economic plus factors is that “instead of using race as a proxy for need, it uses need itself, which advantages the most deserving in all racial groups. Likewise, the ‘plus’ factors are not based on stereotypes or assumptions about any group but are based on the needs and qualities of particular individuals.”95

     In a 2015 study titled “Can Socioeconomic Status Substitute for Race in Affirmative Action College Admissions Policies? Evidence From a Simulation Model,”96 the researchers found that “[socioeconomic status]-based affirmative action policies do not mimic the effects of race-based policies on racial diversity; likewise race-based affirmative action policies do not mimic the effects of [socioeconomic status]-based policies on [socioeconomic status] diversity.”97

    In a 2012 study,98 the researchers contended that if affirmative action in selective college admissions focuses on overcoming academic obstacles, then research suggests that the obstacles to doing well on standardized tests like the SAT are much more closely related to class than race.99 Specifically,

[i]n a 2010 Century Foundation study, Carnevale and Strohl found that socioeconomically disadvantaged students are expected to score 399 points lower on the math and verbal SAT than the most socioeconomically advantaged, while blacks are expected to score 56 points lower than whites. Put differently, the socioeconomic obstacles were seven times as large as the racial ones.100

The researchers pointed out that

[i]f college admissions officers want to be fair—truly meritocratic—they need to consider not only a student’s raw academic credentials, but also what obstacles she had to overcome to achieve them. As noted earlier, the most economically disadvantaged student is expected to score 399 points lower on the math and verbal sections of the SAT than the most advantaged. This information can be used to identify what Anthony Carnevale calls “strivers”—students who overcame the odds to do quite well despite various disadvantages. In this way, economic affirmative action is not meant to be a challenge to merit but rather a better approximation of it. Unlike race-based affirmative action, class-based preferences compensate for what research suggests are the more substantial obstacles in today’s world: those associated with socioeconomic status. A 1200 SAT score surely means something more for a low-income, first-generation college applicant who attended terrible schools than for a student whose parents have graduate degrees and pay for the finest private schooling.101

     After reviewing the arguments on both sides, it seems that racial diversity can indeed provide diversity of viewpoints and experience, even controlling variables such as scholastic test results and socioeconomic status. With regard to the counterarguments that socioeconomic status may serve as a good proxy for diversity because it directly addresses need and because it is a better proxy for merit and overcoming obstacles, socioeconomic status still cannot substitute racial diversity, because these counterarguments have not addressed how socioeconomic status can better contribute to a diversity of viewpoints or experience; merely presenting the fact that socioeconomic status addresses need and merit more directly than race is not going to make it a better proxy for diversity of viewpoints or experience.

     But since it has also be shown that socioeconomic status-based affirmative actions can have effects different from race-based affirmative action, and because religious affiliations can also serve as a good proxy for viewpoints and experiences, arguably, if diversity in race is treated as a compelling government interest, then diversity in socioeconomic status as well as religious affiliations should also be treated as compelling governmental interests as both of them can provide diversity in viewpoints and experience that cannot be substituted by diversity in race.

     Assuming racial diversity provides diversity of viewpoints and experience in the setting of higher education, the question remain as to why racial diversity is thus treated as a compelling governmental interest. Some people would argue that remedying historical harm caused by governmental actions (such as slavery and de jure segregation) to the racial minorities justifies an affirmative action program that recognizes racial diversity as a compelling governmental interest. But the purpose to enhance diversity is promoting educational quality and experience rather than remedying historical harm.102 As the Court in Grutter pointed out that diversity can

promote[] “cross-racial understanding,” help[] to break down racial stereotypes, and “enable[] students to better understand persons of different races.” These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.”

All these purposes for having diversity as pointed out by the Court are educational benefits. By admitting certain amount of ethnic or racial minorities to create such educational benefits, the institution is, in fact, using the minorities as a tool in order to benefit the majority, rather than remedying the minorities for historical harm. Just like Justice O’Connor stated in her dissent in Metro Broadcasting, Inc. v. Federal Communications Commission, “[m]odern equal protection doctrine has recognized only one such [compelling governmental] interest [to support the government’s use of racial classifications]: remedying the effects of racial discrimination. The interest in increasing . . . diversity . . . is clearly not a compelling interest”103 —suggesting that “increasing diversity” clearly cannot remedy the effects of racial discrimination.

     At this point, some people may stress that enhancing diversity also benefits the minorities. But it is worth pointing out that the racial minorities deserve this present benefit of diversity regardless of whether the historical injustice they endured has been remedied.104 In other words, even if in a scenario where every aspect of historical injustice has been remedied or undone, the minorities can still rightfully demand the benefit of diversity, because the right of receiving such present benefit is independent of the right of receiving any reparation for historical injustice.105 Thus, enhancing diversity can remedy historical injustice for the minorities is too convenient to be true.106

     Additionally, questions still remain as to what level of educational benefits can qualify racial diversity as a compelling governmental interest, as opposed to an important governmental interest when courts apply an intermediate level of review, or a legitimate governmental interest when courts apply a rational basis review


     Social science has always been important in affirmative action cases. From demonstrating the educational benefits of diversity to negative impacts on student performance and their subsequent careers, social science has been a crucial component in informing the court on what stance to take. Thus, it is not surprising that the SFFA is supporting its claim with a plethora of sociological studies.

     Based purely on the social science available, it is unclear how favorably the court will look on the SFFA’s sociological evidence on mismatch theory. On the one hand, the SFFA cites Sander’s well-known longitudinal study of law school students which can be praised for its ambitiousness in following law students’ careers over 10 years. On the other hand, studies supporting mismatch theory are methodologically unsound for a variety of reasons. Richard Lempert, in particular, points out the problem in drawing causal conclusions from Sander’s study. It could be that affirmative action hurts the students it aims to benefit by placing them in academic environments that they are not equipped for. Alternatively, it could be that sub-average performances in university are due to preexisting differences, such as personality traits, rather than the affirmative action plan itself. Furthermore, other studies have found results contrary to Sander’s conclusion – that there is no mismatch effect at all. In fact, minority students who are admitted under a race-conscious admissions policy achieved higher grades than their non-minority student counterparts.

     In summary, whilst mismatch theory is not theoretically implausible, the evidence available is rather limited. The conflicting data submitted in the briefs to the court showing a controversial debate into mismatch theory may be enough for the court to reject mismatch theory in its entirety. It is possible for the court to accept mismatch theory. However, the court is also likely to take note of its limitations. Thus, the strength of mismatch theory as evidence for SFFA’s Asian American discrimination claim is inevitably diminished. Whichever way the court swings, it will be making a judgment that will impact future litigation. The future of mismatch theory in the legal context of higher education will be affected by this decision. Should the court reject mismatch theory, it will be difficult for mismatch theory to be resuscitated until new studies can better demonstrate that there is indeed a mismatch effect. For now, how Harvard responds to the social science in the SFFA’s complaint is the most immediate concern.

Footnote Resources:

1 Harvard Admissions Policy Statement, Robert Iuliano, Harvard University General Counsel, last visited March 18, 2018.

2 Brief for Amicus Curiae Harvard University in Support of Respondents 2015 WL 6735848 (U.S.) 5.

3 Students for Fair Admissions, Inc v President and Fellows of Harvard College (Harvard Corporation); and the Honorable and Reverend the Board of Overseers 2014 WL 6241935 42.

4 Id. at 4.

5 Id. at 6.

6 Id. at 7.

7 Id. at 8.

8 Complaint at 384, Students for Fair Admission, Inc. v. Harvard Corp., 2014 WL 6241935 (D. Mass.) (No. 1:14-cv-14176-DJC).

9 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

10 See Fisher v. University of Texas, 133 S. Ct. 2411, 2418 (2013).

11 Grutter v. Bollinger, 539 U.S. 306, 326 (2003).

12 Id. at 339.

13 United States v. Paradise, 480 U.S. 149, 166.

14 Id. at 167.

15 See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274.


17 See Wygant, 476 U.S. at 274.

18 See Grutter v. Bollinger, 539 U.S. 306, 343 (2003); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 314 (1978).

19 See Grutter, 539 U.S. at 343.

20 See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

21 Id. at 317.

22 Grutter, 539 U.S. at 340.

23 See Fisher v. University of Texas, 133 S. Ct. 2411, 2418 (2013).

24 Fisher v. University of Texas, 136 S. Ct. 2198, 2207 (2016).

25 Id.

26 See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 279 (1978).

27 See Id. at 275.

28 See Gratz v. Bollinger, 539 U.S. 244, 270 (2003).

29 See, e.g., Yanan Wang, Where Justice Scalia Got the Idea that African Americans Might be Better Off at ‘Slower-Track’ Universities, WASH. POST (Dec. 10, 2015).

30 Transcript of Oral Argument at 67–68, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981) (sentence fragments removed).

31 Conor Friedersdorf, Does Affirmative Action Create Mismatches Between Students and Universities?, THE ATLANTIC (Dec. 15, 2015). (“‘It is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench on the nation’s highest court,’ said Senate Minority Leader Harry Reid.”).

32 Br. for Amicus Curiae for Richard Sander in Supp. of Neither Party at 1, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

33 Id. at 17.

34 See Richard H. Sander, A Systematic Analysis of Affirmative Action in American Law Schools, 57 STANFORD L. REV. 367, 465 (Nov. 2004) (“[T]he annual production of new black lawyers would probably increase if racial preferences were abolished tomorrow.”).

35 Br. for Amicus Curiae for Richard Sander in Supp. of Neither Party at 17–18, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

36 Id. at 16, 19. Sanders attests that the second-order effects of mismatch (“harmful effects that happen more indirectly, as a consequence of some first order effect,” such as college graduation rates) are the real source of debate over mismatch theory. Id. at 19.

37 Id. at 21.

38 Id. at 22-23.

39 Id.

40 Richard H. Sander, A Systematic Analysis of Affirmative Action in American Law Schools, 57 STANFORD L. REV. 367 (Nov. 2004).

41 Id. at 426-427.

42 Id. at 443.

43 Id. at 465.

44 Id. at 466.

45 Id. at 440.

46 Br. for Amicus Curiae for Richard Sander in Supp. of Neither Party at 22, 25, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

47 Id. at 26.

48 Br. for Amicus Curiae for Richard Lempert in Supp. of Resp’t, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

49 Id. at 3 (“Only by failing to acknowledge the most relevant studies and by making misleading arguments does Sander manage to give the impression that the mismatch hypothesis is a widely accepted truth.”).

50 Id. at 10.

51 Id. at 3.

52 Id. at 6.

53 Id. at 9.

54 Id. at 26.

55 Id. at 21.

56 Id. at 10.

57 Br. for Amicus Curiae for Empirical Scholars in Supp. of Resp’t at 12, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

58 Id. at 14.

59 Id. at 16.

60 Id. at 19.

61 Id. at 20–23. For instance, the empirical scholars reject measuring bar passage rates without considering the students who dropped out of law school.

62 Id.

63 Id. at 16.

64 Complaint at 383–84, Students for Fair Admission, Inc. v. Harvard Corp., 2014 WL 6241935 (D. Mass.) (No. 1:14-cv-14176-DJC).

65 Id. at 394.

66 Id. at 387.

67 Id. at 398.

68 Br. of Amicus Curiae for Students in Support of Defs., Students for Fair Admission, Inc. v. Harvard Corp., 2016 WL 10805895 (D. Mass.) (No. 1:14-cv-14176-ADB).

69 Id.

70 Id.

71 Id.

72 Br. for Amicus Curiae for Empirical Scholars in Supp. of Resp’t at 12, Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981).

73 Id. at 16.

74 Complaint at 213, Students for Fair Admission, Inc. v. Harvard Corp., 2014 WL 6241935 (D. Mass.) (No. 1:14-cv-14176-DJC).

75 Id. at 222.

76 Id. at 239.

77 Id. at 241. See Table B.

78 Id. at 314.

79 This is not an inquiry of what other criteria can be used as a proxy for race.

80 See Timothy L. Hall, Educational Diversity: Viewpoints and Proxies, 59 OHIO ST. L.J. 551 (1998).

81 Id. at 569.

82 Id. at 573.

83 See Id.

84 See Id. at 574.

85 Richmond v. J.A. Croson Co., 488 U.S. 469, 508 (1989).

86 Hall, supra note 52, at 574.

87 Id. at 585.

88 See Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059 (1996).

89 Id. at 2071.

90 Id.

91 Hall, supra note 52, at 587.

92 See Michelle M. Inouye, The Diversity Justification for Affirmative Action in Higher Education: Is Hopwood v. Texas Right, 11 NOTRE DAME J.L. ETHICS & POL’Y 385 (1997).

93 See Id. at 414.

94 See Id.

95 Id. at 415.

96See Sean F. Reardon et al., Can Socioeconomic Status Substitute for Race in Affirmative Action College Admissions Policies? Evidence From a Simulation Model, EDUC. TESTING SERV. (2015).

97 Id. at 19.

98 See Richard D. Kahlenberg & Halley Potter, A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences, THE CENTURY FOUNDATION, 2012.

99 See Id. at 5.

100 Id.

101 Id. at 12.

102 See Grutter, 539 U.S. at 330.

103 Metro Broad., Inc. v. FCC, 497 U.S. 547, 612 (1990) (O’Connor, J., dissenting).

104 It is worth noting that providing benefit is a necessary but not sufficient condition for remedying historical harm, but providing present benefit (i.e. forward-looking benefit) is independent of remedying historical harm (which is necessarily backward-looking).

105 Imagine a scenario where it is contractually agreed that an employer will make a payment of $1,000 to an employee every month for a total of three months, and the employer fully performed the payment for the previous two months, but refused to pay for the third month. Now it will be absurd to claim that the first two months’ of payments have been made in full, thus the duty to make the third month’s payment is thereby discharged.
Similarly, even if racial minorities were never mistreated in the past, they can still rightfully demand the benefit of racial diversity in higher education, which is a benefit that they deserve independent of any past wrongs.

106 Imagine a scenario where it is contractually agreed that an employer will make a payment of $1,000 to an employee every month for a total of three months, but the employer skipped the first and the second month and only paid the employee $1,000 for the third month. Now it will be too convenient for the employer to claim that a fully performed payment of $1,000 for the third month can make up for the balance due for the previous two months.
    Similarly, even if racial diversity has been achieved in higher education context, such current benefit of diversity cannot function as a remedial measure for any past wrongs suffered by minorities. Providing what the minorities rightfully deserve currently cannot make up for what they had been deprived in the past.