Ohio University Harvard Student admissions Case Discussion Format: Times New Roman, 12 size, 1 inch margin. Including abstract, introduction, analyze case

Ohio University Harvard Student admissions Case Discussion Format: Times New Roman, 12 size, 1 inch margin.

Including abstract, introduction, analyze cases that I gave you, finding similarity and difference, discussion, conclusion.

We are studying general law so that you just need to write like a rookie who study law cases.

In the article, you need to stand students’ side to indicate whether this case is real happened or not.

If you want to use other related sources, that’s good.

References part is not including in 10 pages. THE HARVARD PLAN THAT FAILED ASIAN AMERICANS
In November 2014, Students for Fair Admissions (SFFA) filed a complaint against Harvard College in federal district court.1 SFFA claims
that Harvard discriminates against Asian Americans by holding them
to higher admissions standards than any other racial group, including
whites.2 Because Harvard is an institution that accepts federal funds,
it “violates Title VI when it engages in racial or ethnic discrimination
[prohibited by] the Equal Protection Clause of the Fourteenth Amendment.”3 SFFA argues that Harvard’s race-based admissions program is
impermissible under Supreme Court precedent. Beyond that, SFFA
urges “the outright prohibition of racial preferences in university admissions — period.”4 Ironically, the allegedly discriminatory “Harvard
Plan” is the very one that Justice Powell held up as a model in Regents
of the University of California v. Bakke5 and the admissions program
that American universities have emulated for decades.6
For the last thirty years, Asian admissions has been a hot topic.7
Rumors, and sometimes concrete evidence, of racial discrimination and
ceiling quotas fuel the controversy. The Princeton Review advises applicants that “an Asian-sounding surname” may be a disadvantage.8
Asian parents, many of whom immigrated to the United States for their
children’s education, have staged protests outside of the Supreme
Court.9 And Pacific Islanders — traditionally classified with Asians
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1 Complaint, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 308
F.R.D. 39 (D. Mass. 2015) (No. 14-cv-14176) [hereinafter SFFA Complaint]. On the same day, SFFA
also filed a complaint against the University of North Carolina, although it did not specifically focus
on Asian Americans. Complaint, Students for Fair Admissions Inc. v. Univ. of N.C., 319 F.R.D.
490 (M.D.N.C. 2017) (No. 1:14-cv-954).
2 See SFFA Complaint, supra note 1, at 43–53.
3 Id. at 94. This Note assumes that the Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000d to 2000d-7 (2012), and equal protection analyses are coextensive — private institutions
that receive federal funding, like Harvard University, are subject to the same requirements as public
institutions like the University of Michigan. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003)
(“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth
Amendment committed by an institution that accepts federal funds also constitutes a violation of
Title VI.”).
4 SFFA Complaint, supra note 1, at 6.
5 438 U.S. 265, 316–17 (1978) (Powell, J.).
6 See SUSAN WELCH & JOHN GRUHL, AFFIRMATIVE ACTION AND MINORITY ENROLLMENTS IN MEDICAL AND LAW SCHOOLS 63 (1998) (describing university responses to Bakke).
7 This Note uses the terms “Asian” and “Asian American” interchangeably. Furthermore, this
Note discusses Asian Americans as a whole but recognizes that different subgroups may be affected
differently by affirmative action policies.
8 THE PRINCETON REVIEW, CRACKING COLLEGE ADMISSIONS 174 (John Katzman et al.
eds., 2d ed. 2004).
9 Emil Guillermo, As SCOTUS Hears Affirmative Action Arguments, Asian American Advocates Weigh In, NBC NEWS (Dec. 10, 2015, 3:09 PM), https://www.nbcnews.com/news/
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under the label “Asian Pacific American” — have become so concerned
about an admissions handicap that they have withdrawn from the Asian
category to group themselves with Native Hawaiians.10 Within the
Asian American community, the topic of affirmative action can be divisive. While a vocal minority wants completely race-blind admissions,
many more support affirmative action programs for underrepresented
minorities.11 Their objection is to “negative action,” or unequal treatment in comparison to the white majority.12
This Note proceeds in three Parts. Part I considers the arguments
that SFFA and other Asian American organizations have made, and
provides a brief history of previous investigations and legal actions. Part
II analyzes the Supreme Court’s diversity rationale and argues that its
development has been harmful for Asian students. Under the Court’s
affirmative action decisions, litigants like SFFA face an uphill battle.
Part III returns to where it all started: with Justice Powell in Bakke.
Through an examination of Justice Powell’s notes and correspondence,
this Note argues that his endorsement of the Harvard Plan was shortsighted and unwise. Even in 1978, the dangers of the diversity rationale
should have been apparent.
I. ASIAN AMERICAN CHALLENGES TO ADMISSIONS POLICIES
A. The Evidence
Asian American groups have made similar types of arguments in past
and current complaints alleging discriminatory admissions policies. Due
to the inherent difficulty of proving racial discrimination, their arguments rely heavily on statistical evidence. Admissions data in the aggregate, they say, show that universities hold Asians to higher standards
than all other groups. Doing so is the equivalent of applying race-based
penalties to Asian applicants.
First, Asian Americans challenge the notion that they are overrepresented. The question of parity depends on the baseline for comparison:
although Asians are overrepresented in relation to the general population, they tend to be the most underrepresented group when compared
to the applicant pool. Studies show that Asians have the lowest acceptance rates of all racial groups.13
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
asian-america/scotus-hears-affirmative-action-arguments-asian-american-advocates-weigh-n477806
[https://perma.cc/3LDF-GW3d].
10 See DANIEL GOLDEN, THE PRICE OF ADMISSION 204 (2006).
11 Nancy Leong, The Misuse of Asian Americans in the Affirmative Action Debate, 64 UCLA L.
REV. DISCOURSE 90, 93 (2016).
12 See William C. Kidder, Essay, Negative Action Versus Affirmative Action: Asian Pacific
Americans Are Still Caught in the Crossfire, 11 MICH. J. RACE & L. 605, 605–06 (2006).
13 See, e.g., ASIAN AM. COAL. FOR EDUC., COMPLAINT FOR UNLAWFUL DISCRIMINATION
AGAINST ASIAN-AMERICAN APPLICANTS IN THE COLLEGE ADMISSIONS PROCESS 12–13
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Second, complainants assert that the low rates of acceptance are especially egregious given that Asian Americans tend to be better qualified
than the average applicant. This is demonstrable at least with regard
to quantifiable academic qualifications. At the top range of SAT scoresenders — from which selective institutions draw the majority of their
students — around 50% are Asian.14 Similar patterns exist for other
conventional indicators of academic merit, including the National Merit
Scholarship, Intel Science Talent Search, and various national awards
for high school students.15
Put another way, Asians must perform better than all other groups
to have the same chance of admission. One study showed that in order
to be admitted to certain selective institutions, Asian applicants needed
to score — on the 1600 point scale of the “old SAT” — 140 points higher
than whites, 270 points higher than Hispanics, and 450 points higher
than African Americans if other factors are held equal.16
Third, Asian Americans point to the stability of racial demographics
at universities. While the number of Asian applicants has increased
manifold in the last few decades, the number of admitted students has
stagnated, with some variation.17 By comparison, institutions that do
not employ race-based affirmative action programs, such as Caltech,
have seen a dramatic increase in Asian enrollment “commensurate with
the increase of college-age Asian-Americans.”18 This, according to complainants, is evidence of informal quotas and racial balancing — similar
to the de facto ceiling quotas imposed on Jewish students in the early
twentieth century.19
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
(2016) [hereinafter AACE COMPLAINT], http://asianamericanforeducation.org/wp-content/
uploads/2016/05/Complaint_Yale_Brown_Dartmouth_Full.pdf [https://perma.cc/R3BN-TPXF].
In a comprehensive study of ten academically selective institutions, Professor Thomas Espenshade
and sociologist Alexandria Walton Radford found that both public and private institutions admitted
Asians at the lowest rates. THOMAS J. ESPENSHADE & ALEXANDRIA WALTON RADFORD, NO
LONGER SEPARATE, NOT YET EQUAL 80 tbl.3.3 (2009).
14 See SFFA Complaint, supra note 1, at 47.
15 Ron Unz, The Myth of American Meritocracy: How Corrupt Are Ivy League Admissions?,
AM. CONSERVATIVE (Nov. 28, 2012), http://theamericanconservative.com/articles/the-myth-ofamerican-meritocracy/ [https://perma.cc/B35H-83NF].
16 ESPENSHADE & RADFORD, supra note 13, at 92 tbl.3.5. The study controlled for other
factors, including but not limited to, social class, being a recruited athlete, and legacy status. See
id. It is possible that Asians are underqualified with regard to nonacademic factors, but the few
studies that have researched the issue, including one by the U.S. Department of Education, have
found no correlation between race and extracurricular achievements. See, e.g., Shawn Ho, A Critique of the Motivations Behind Negative Action Against Asian Americans in U.S. Universities:
The Model Victims, 5 COLUM. J. RACE & L. 79, 93 (2015).
17 See, e.g., SFFA Complaint, supra note 1, at 69; AACE COMPLAINT, supra note 13, at 15–16.
18 AACE COMPLAINT, supra note 13, at 15.
19 See, e.g., JEROME KARABEL, THE CHOSEN 110–26 (2005); Stephen Steinberg, How Jewish
Quotas Began, COMMENTARY (Sept. 1, 1971), https://www.commentarymagazine.com/articles/
how-jewish-quotas-began/ [https://perma.cc/HNS4-YM7F].
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THE HARVARD PLAN THAT FAILED ASIAN AMERICANS
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B. Legal Challenges by Asian Americans
Asian American groups have made variants of these arguments since
the early 1980s and have filed multiple complaints against and urged
investigations into a number of universities.
At Stanford, the Committee on Undergraduate Admissions and Financial Aid, after an exhaustive internal investigation, conceded negative action against Asian applicants.20 Its 1986 report stated: “No factor
we considered can explain completely the discrepancy in admission rates
between Asian Americans and whites.”21 Subconscious bias by admissions officers was likely the culprit, it concluded, but the Committee
“elected not to investigate the bias because ‘the analysis required would
be formidable.’”22 A similar episode took place at Brown, where an
internal committee found that “Asian American applicants have been
treated unfairly in the admissions process.”23 On the other hand, internal investigations at Cornell, Princeton, and Harvard did not find discrimination against Asian applicants.24
In 1988, the U.S. Department of Education launched two highprofile civil rights investigations into Harvard and UCLA. After two
years of review, the Office of Civil Rights (OCR) cleared Harvard but
found that UCLA had discriminated against Asian applicants.25 OCR
determined that UCLA’s graduate math program had not complied with
Title VI because it had rejected Asian students whose qualifications
were comparable to admitted white students. Per the OCR order,
UCLA made “belated admissions offers” to the rejected students.26 At
Harvard too, OCR found that Asian students were admitted at significantly lower rates than similarly qualified white students. But
Harvard’s preference for legacy applicants and recruited athletes explained the disparity. The report concluded: “OCR finds that Harvard’s
use of preferences for children of alumni, while disproportionately benefiting white applicants, does not violate Title VI of the Civil Rights Act
of 1964.”27
Now is an important moment for Asian Americans and university
admissions. In addition to the SFFA lawsuit against Harvard and a
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20
21
22
23
DANA Y. TAKAGI, THE RETREAT FROM RACE 39–40 (1992).
Id.
Id. at 40.
Id. at 29. Like Stanford, Brown maintained that the unequal treatment was unintentional
and due to cultural bias. KARABEL, supra note 19, at 501.
24 TAKAGI, supra note 20, at 9.
25 Id. at 164.
26 Id.
27 KARABEL, supra note 19, at 505.
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potentially related Department of Justice investigation,28 Asian
Americans have filed federal civil rights complaints against, among
others, Yale University, Columbia University, and the University of
Chicago.29
II. THE LAW OF AFFIRMATIVE ACTION
Current law on affirmative action is based on Justice Powell’s lone
opinion in Bakke,30 which shifted the justification for racial preferences
from remedying societal discrimination to the attainment of diversity.
This shift has had a largely negative impact on Asian applicants.
A. The Supreme Court Decisions
Affirmative action in higher education grew out of the civil rights
movement. After centuries of discrimination and segregation, minorities
in America did not — and could not — rush into universities the
moment they finally opened their doors.31 University administrators,
troubled by their overwhelmingly white student bodies, established affirmative action programs to assist minority groups that had been disadvantaged by past and present discrimination.32 These early programs
included Asian Americans along with other minorities.33
Race-based preferences quickly became controversial, largely due to
white students’ objections to “reverse discrimination.”34 In 1978, the
issue came before the Supreme Court in Bakke. Justice Powell’s pivotal
opinion recognized “the attainment of a diverse student body” as a compelling state interest under the Equal Protection Clause.35 The diversity
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28 William S. Flanagan & Michael E. Xie, Justice Department Actively Investigating Harvard
Admissions, HARV. CRIMSON (Oct. 11, 2017), http://www.thecrimson.com/article/2017/10/11/foiaconfirms-doj-investigation/ [https://perma.cc/GGC8-EUG6].
29 AACE COMPLAINT, supra note 13, at 12.
30 Allan Bakke, a white male, was twice rejected by the Medical School of the University of
California at Davis. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 276–77 (1978). Each year,
the medical school accepted a class of one hundred students but reserved sixteen spots exclusively
for minorities. Id. at 279.
31 See Colin S. Diver, From Equality to Diversity: The Detour from Brown to Grutter, 2004 U.
ILL. L. REV. 691, 695–96.
32 Id. at 695.
33 See, e.g., Sharon S. Lee, The De-Minoritization of Asian Americans: A Historical Examination of the Representations of Asian Americans in Affirmative Action Admissions Policies at the
University of California, 15 ASIAN AM. L.J. 129, 132–33 (2008).
34 See Bakke, 438 U.S. at 288 & n.25 (Powell, J.).
35 Id. at 311; see also id. at 311–12, 314. The Court divided 4–4–1. Chief Justice Burger and
Justices Stewart, Rehnquist, and Stevens concluded that the special admissions program was racially discriminatory and violated Title VI. Id. at 421 (Stevens, J., concurring in the judgment in
part and dissenting in part). Thus, they declined to address the constitutional issue. Id. at 411–12.
Justices Brennan, White, Marshall, and Blackmun defended the Davis program as permissible under both Title VI and the Fourteenth Amendment. In addition, they endorsed the remedial rationale. Id. at 325–26 (Brennan, J., concurring in the judgment in part and dissenting in part).
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THE HARVARD PLAN THAT FAILED ASIAN AMERICANS
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rationale invoked First Amendment values, particularly the “freedom of
a university to make its own judgments as to education[,] includ[ing] the
selection of its student body.”36 In endorsing diversity, Justice Powell
rejected the other rationales offered by the University of California, including its predominant one of “remedying the effects of ‘societal discrimination.’”37 The concept of general societal discrimination against
minorities — without “particularized findings of past discrimination”38 — was simply too “amorphous” to justify the burden on innocent
white applicants like Allan Bakke.39
Although Justice Powell was the lone Justice to favor the diversity
rationale at the time, his opinion was typically viewed as controlling,
and the Supreme Court later endorsed it in Grutter v. Bollinger40 and
Fisher v. University of Texas at Austin (Fisher II).41 Today, diversity
remains the primary compelling interest that can justify race-based admissions programs in higher education.
1. The Ends: Defining Diversity. — For the purposes of this
analysis, the Court’s diversity rationale stands out in three ways:
deference to the university, inseverability from proportionate
representation, and departure from the original antidiscrimination goals
of affirmative action programs.
The Supreme Court has never sought to define diversity with much
precision: How much diversity is sufficient? How big of a role can race
play in admissions? Is racial diversity equally important in engineering
versus the liberal arts? What does student body diversity actually look
like? Instead, the Court has left these questions to university administrators on the assumption that they are “complex educational judgments
in an area that lies primarily within the expertise of the university.”42
Another, less explicit assumption holds that affirmative action programs
are “benign” racial classifications that help minorities rather than “invidious” classifications that harm them.43 Despite the Court’s insistence
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36
37
Id. at 312 (Powell, J.).
Id. at 307. As Justice Powell explained, because Davis Medical School was a new institution
with no history of racial discrimination as documented by a legislative, adjudicative, or administrative finding, the remedial rationale was inappropriate under these circumstances. See id. at 307–
10. This reasoning did not foreclose the use of the remedial rationale by institutions that had previously engaged in racial discrimination. See id. at 307.
38 Id. at 295 n.34.
39 Id. at 307.
40 539 U.S. 306 (2003).
41 136 S. Ct. 2198 (2016).
42 Grutter, 539 U.S. at 328.
43 See Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools,
57 STAN. L. REV. 367, 481 (2004).
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that it applies strict scrutiny to all racial classifications,44 it scrutinizes
university affirmative action programs with considerably less rigor.45
Deference to the university is substantial, so much so that some commentators have argued that university administrators have a “blank
check” to craft race-based admissions programs.46 The Court defers
both to the university’s conclusion that “diversity is essential to its educational mission” and to its definition of student body diversity.47 It also
presumes the university’s good faith, “absent ‘a showing to the contrary.’”48 Cons…
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