• David Wudyka

Why Harvard University Has A Problem


The Boston Globe recently reported (11/25/2018) that Harvard University was being sued by a group of Asian Americans named “Students for Fair Admissions” (SFA). This group claims that Asian American applicants are experiencing discrimination in Harvard’s admissions selection process.

In this case, SFA alleges that two factors, culture and leadership, are subjectively evaluated, and unduly penalize Asian Americans, who are perceived as having weaker personal attributes in these areas. The Asian Americans argue that they are viewed as being more culturally “passive,” and that their collectivist Asian culture does not produce a bevy of aggressive, emergent leaders. As a result, they suffer in the admissions process.

At the core of this issue is a concept called “race-based admissions,” which sounds discriminatory on its very surface. In fact, with the blessing of the Supreme Court, colleges and universities may admit members of protected classes at higher rates to create a learning environment that is more culturally “rich” for students and faculty alike.

From a human resources perspective, this approach seems to contradict the very notion of Affirmative Action (AA), created by Executive Order 11246 in 1965. The focus at that time was the recruitment of African Americans in the workplace and in educational institutions. Eventually, the effort spread to the recruitment of other minority employees and students.

The Equal Employment Opportunity Commission (EEOC) oversaw employers’ painful effort to understand and adapt to Affirmative Action law as they implemented its principles during the 1960’s, 70’s and ‘80’s. The emphasis upon African American selection created the misperception in the minds of the public that Affirmative Action was intended not only to be fair to African Americans, but preferential as well.

The goal in fact was not to give preferential treatment to African Americans, but to “act affirmatively” when two job candidates, one from the majority group and one from a minority group, were equally qualified for a job opportunity. This meant hiring the minority candidate in the spirit of Affirmative Action. It also required that employers must show evidence of active outreach to attract minority job candidates to their organization. Since this aggressive outreach was not utilized for the majority, it is easy to understand why the hiring of African Americans was seen as based upon something other than true merit.

In the SFA case, it sounds like an institution (i.e. Harvard) allegedly drew conclusions about a large group of people (i.e. Asian Americans). And we have a label for that - “stereotyping.” It means that people are deemed to have consistent characteristics across the population, rather than a unique set of individual traits. This is germane to the SFA’s case and allegation.

Relevant Cases

For historical reference and comparison, Jennifer Gratz was a high school student in Michigan whose young life’s goal was admission to the University of Michigan. Her qualifications seemed to ensure that her goal would be fulfilled. However, she was not accepted. In the Gratz case (vs. Bollinger and the University of Michigan) in 2003, she discovered that the University credited 20 points for “race” in their weighted admissions evaluation process. This had the effect of ruling minority candidates “in.”

Thirty-eight years after the arrival of Affirmative Action, the University of Michigan probably still thought that its policy reflected its good intentions to boost the interests and presence of minority students. But in fact, their strategy was an anachronistic artifact of an earlier age. In 2003 human resource practitioners knew that an organization should not give preferential treatment to minority candidates. It should provide “equal opportunity.”

The Supreme Court ruled that the University of Michigan’s practice was indeed discriminatory. However, the Supreme Court did suggest that race may be used as a factor in the University’s Graduate School, to create a “culturally rich” program and community. This Supreme Court decision gave rise to what we now know as “race-based admissions.”

In another case in which the Supreme Court supported race-based admissions, Abigail Fisher (Fisher I and II vs. University of Texas, 2013) made a similar allegation to that of Gratz. Both Fisher and Supreme Court Justice Thomas argued that the University of Texas’ policy violated the Equal Protection Clause of the 14th Amendment. This Clause provides that "(no State” [...] should deny to any person within its jurisdiction the equal protection of the laws."

But, in the end, the race-based concept was upheld.

Implications for the Harvard Case

Interestingly, unlike the efforts of employers to satisfy the goals of Affirmative Action policy and law to rule minority candidates “in,” the allegedly discriminatory Harvard admissions process rules Asian American candidates “out.” This allegation results when Plaintiffs (in any case) conclude that the rate of exclusion of members of a protected class is so great that it cannot be due to chance alone.

From a human resources perspective, the alleged method used by Harvard to block Asian American applicants, if true, produces an outcome known as “Adverse Impact.” In this concept, organizations unintentionally discriminate against people because of the characteristics of the system or process. For example, a “family friendly” hiring policy may unintentionally result in the perpetuation of employees who are from the majority, if the work force is not racially mixed.


There is no reason to believe that Harvard intends to discriminate. But the allegation is that it does, and that it has a disproportionate impact upon Asian Americans.

In Part Two in our examination of this topic, we will focus upon Harvard’s need for minority students in both its Graduate Schools and its Undergraduate Programs (Boston Globe, 3/2019). This will demonstrate how the alleged impact of its Admissions Policy upon the Asian American community seems to contradict the University’s need for greater minority representation at both program levels.

We will also discuss the future of Affirmative Action.


In our last blog, we described the nature of the accusation by Students for Fair Admissions against Harvard University and its Admission Policy, and how they allege it discriminated against them. We also described the underlying issues and concepts relevant to Affirmative Action and their relationship to this case. In this blog we will address other related concepts and offer a view of the competing positions on the admissions process.

(Note: As we were planning to post a two part blog to our web site, some extraordinary events occurred: 1) the Boston Globe (3/2/2019) published an article about Harvard University and the state of its Graduate Programs, relative to the issue of diversity levels for protected classes, and 2) a massive fraudulent college admissions scheme was announced by the FBI that resulted in the prosecution of people across the nation, including some familiar names in Entertainment. As a result, this has become a three part series.)

The Numbers

So what are the “numbers”? Regarding the first event above, The Boston Globe reported that Harvard University has had difficulty attracting minority students to its graduate programs. The Globe’s data show that:

• 5% of students in the Business School were African American, about the same as in 2008 (Note: African Americans are about 10 -15% of the U. S. population in any given year.)

• Hispanic students made up 4% of the Kennedy School of Government, down 2% from 2008 (Similarly, Hispanics represent close to 30% of the U. S. population.)

• The percentage of Caucasian students increased from 2008

• At the Law School 10% of students are Asian American, 6% are black, and 5% are Hispanic

• “Foreign students” as a category make up 12% of undergraduates, but are one third to one half of the population of five Graduate Schools.

(By contrast, at the University of Massachusetts Boston, in the 2018 Freshman class of 2,315 non-transfer students, 113 foreign countries are represented. If only one student came from each country, this level would be about 5%. However, it is likely to be much greater. UMB has a high rate of transfer students from other schools. (Source: UMB website))

• African Americans make up 10% of the Education School, more than their representation in the undergraduate school

• According to the Harvard website, 12.8% of 2018 admissions are International students.

Achieving Multiple AAP Goals

If it seems that Affirmative Action Programs and legal compliance are difficult to manage, we agree. The original goal of Affirmative Action, namely, the employment and admission of African Americans, has expanded to include other minority groups. This is good and should be the Nation’s goal. But this “balancing act” has become much more challenging. This is evident in the SFA case. Today, meeting a goal for one minority group doesn’t mean that the goal for other groups is met.

Even while preparing this blog, we discovered arguments on both sides of several core questions about Affirmative Action. For example:

• Should “race-based admissions” be the guiding policy and strategy? Or should admissions policies be “color blind”?

• Should we strive to minimize or eliminate any favoritism toward people of color to meet AA goals? Or do we drive harder toward admissions that are based only upon qualifications?

• If the latter is true, what should the qualifications be? And, if interviews with college Admissions Counselors are permitted to assess an applicant’s character, how can we possibly avoid the influence of race? And what about the bias potential that lurks in the background of personal encounters?

• Given that AA is now about more than the recruitment of African Americans, what should the goal by race or ethnicity be? What about gender? Should the admissions goal for each group mimic their representation in our society?


So how is Harvard doing now?

The good news is that Harvard has had a successful recruiting year. Approximately 15.2% of the incoming Freshman class consists of African Americans, according to Harvard’s web site. Even better, Asian Americans represent 22.9% of the incoming class.

Please note that the reporting of Harvard’s Admissions data is presented in various ways by various sources. One such profile is presented in a survey of students’ self-perceptions at www.features.thecrimson.com/2018.

What’s Next?

In Part Three of this series, we will examine some creative attempts to address the complex decision of college admissions. One consulting firm has created its own set of criteria for the admission of college applicants. It is very different, and intriguing, although some have called the criteria impractical.

We will also boldly describe a suggested framework of our own for achieving fair admissions.

We welcome your own views about this challenge.

#HarvardUniversity #AsianAmericans #StudentsforFairAdmissions #collegeadmissions #SFA #racebasedadmissions #protectedclasses #humanresources #AffirmativeAction #ExecutiveOrder11246 #EqualEmploymentOpportunityCommission #EEOC #stereotyping #affirmativeaction

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