Law school panel discusses ethics of affirmative action
When Students for Fair Admissions filed a lawsuit against Harvard University alleging that its competitive admissions process discriminated against Asian-American students, the organization thrust itself into the national spotlight and ignited a debate about the future of affirmative action. In light of these events, panelists ranging from admissions officers to law professors gathered in the University of Michigan Law School Wednesday evening to discuss the ethics and legality of using race in college admissions decisions.
Event organizer Jasmine Wang, a Law student, opened the discussion by noting the controversy surrounding the lawsuit and the conflicting feelings many people experience when approaching the subject. Wang, who serves as the political action chair for the Asian Pacific American Law Students Association, said offering a legal perspective on affirmative action would dispel misinformation and give students a deeper understanding of the policy’s history.
“I think this lawsuit, SFFA v. Harvard, has been really painful for a lot of people in the Asian-American community and between the racial minorities,” Wang said. “For me, it’s more of an imperative to clarify what’s going on and hear from people who can be a guiding voice and really take control of the narrative.”
Though this case specifically targets the admission processes at Harvard, the University of Michigan has also been involved in numerous cases surrounding the constitutionality of race-conscious admissions policies. In 2003, Grutter v. Bollinger upheld the use of affirmative action at the Law School in a 5 to 4 decision. The decision was overturned three years later as a result of Proposition 2, which prohibited racial discrimination in all forms and led to a significant drop in the number of underrepresented students at the University.
Nicole Gon Ochi, the supervising attorney for Asian Americans Advancing Justice – Los Angeles, a non-profit civil rights organization that provides legal advice for members of the Asian-American and Pacific-Islander community noted how the rhetoric surrounding SFFA v. Harvard has changed since 2014. Ochi said the lawsuit, which was filed by conservative legal strategist Edward Blum, may have intended to eliminate affirmative action policies rather than combat discrimination directly.
“There were many claims in this lawsuit that were very targeted at affirmative action and only one of them, actually, is focused on intentional discrimination,” Ochi said. “A number of those claims were dismissed through Harvard’s motion to dismiss a year and a half ago, but nevertheless that was the intention of this lawsuit.”
Ochi also stressed that while the lawsuit may appear to support Asian-American students, its claims would have little to no impact on enrollment and admission rates. In fact, Ochi said the chances of an Asian-American student getting into a selective university would increase by less than one percent if all African-American and Latinx students were removed from the pool.
“Even if Harvard, or any other selective school, got rid of the consideration of race, the chances of an Asian-American student getting into that school would really not change,” Ochi said. “I think that we do need to separate discrimination against Asian Americans from affirmative action. Affirmative action is not the cause of any discrimination Asian Americans may face.”
Panelists also discussed holistic admissions policies, which are known to give applicants the fairest chance at admission but are often difficult to implement at large, state-funded universities. Steven Gay, the assistant dean of admissions at the U-M Medical School, said he prefers to focus on an applicant’s experiences, struggles and strengths rather than nondescript factors like MCAT score or GPA.
“Holistic review is, in a significant way, how you’ve achieved and succeeded within context,” Gay said. “What did you have to go through, what did you have to work through, where did you have to go, how did you have to do it to get to that point? Holistic review is a means to get to the core values of what your institution stands for and how it wants to be a presence in our communities.”
In response to Gay’s argument, Astronomy professor Sally Oey said this type of holistic review does not always take implicit bias into account, potentially leading to further discrimination.
“This case is about discrimination, in fact, also, and it’s not just about affirmative action,” Oey said. “Those two things are very separate, as we’ve heard about just now. But if there is discrimination, it’s something we need to be concerned about and implicit bias is something to be concerned about as well.”
Law professor Margo Schlanger noted how a holistic admissions process can be advantageous for both the applicant and the school. Even so, Schlanger said willfully ignoring the race of an applicant in admissions does nothing to solve the issue of racial underrepresentation.
“It just seems that public universities should educate the public,” Schlanger said. “It seems to me that to fulfill our mission, we need to have people here of many different types, in part because we educate each other better that way and that’s good, but in part because it is just and it is right and it is our role in the state … If we have a coherent claim in justice about racial diversity and racial justice, then we should aim our policies at racial diversity and racial justice.”
Anthony Fowlkes, a Public Policy and Education graduate student, agreed with Schlanger’s point that “race-neutral” admissions processes do not address the lack of diversity on college campuses.
“Color-blind is not a thing — it’s still a non-neutral policy,” Fowlkes said. “We also have to make sure that discrimination is not happening on the other end. Because nothing is race-neutral, there is a chance for discrimination on the other side of that.”