Affirmative Action Fight Shifts to UNC

For months, public debate about affirmative action in college admissions has focused on a lawsuit against Harvard University charging that the institution discriminates against Asian American applicants. Harvard's policies have been scrutinized not only by a federal judge but by the public, and much of the attention has been critical. Admissions rates and test scores have been analyzed and re-analyzed. While college leaders and higher education associations have backed Harvard, saying that its diversity policies are legal and moral, not everything that emerged in the trial was about diversity. The lawsuit has drawn attention, for example, to the benefit that alumni children (most of them white and well-off) receive in the admissions process. Ditto for athletes (also primarily white). And the Trump administration has been backing the lawsuit, while starting an investigation of similar admissions practices at Yale University.

A federal judge is currently reviewing all the evidence, and a decision is expected in the coming months.

Meanwhile, another case is heating up. Students for Fair Admissions (SFFA) sued not only Harvard, but also the University of North Carolina at Chapel Hill. The outcome of the UNC case could be as important as the one at Harvard. Critics of affirmative action hope to see the issue of college admissions return to the U.S. Supreme Court, which has in multiple cases upheld the right of colleges to consider -- under certain circumstances -- race and ethnicity in admissions. One path to the Supreme Court is for the Harvard case, whatever its outcome, to be appealed.

Another path could depend on the UNC case. While it's impossible to know whether the Supreme Court will take up any issue, differing interpretations of the Constitution in different federal circuits tend to draw the Supreme Court's involvement. And that involvement worries supporters of affirmative action, since Justice Anthony M. Kennedy, now retired, was a crucial vote for the right of colleges to consider race.

On Friday, both SFFA and UNC filed briefs in the case, outlining for the first time in detail their takes on the issues at Chapel Hill. Both sides want the court to rule in their favor without a full trial. Some of the issues are similar to those in the Harvard case. In short, SFFA argues that colleges like Harvard and UNC go beyond what the Supreme Court permits in considering race in admissions. UNC, like Harvard, argues that it evaluates all applicants as individuals -- through holistic admissions. UNC freely admits that it considers race and ethnicity in admissions decisions, but that it does so much more modestly than SFFA alleges.

In other ways, UNC is different from Harvard. Chapel Hill is a public institution in a state where the law bars public universities from admitting more than 18 percent of students from out of state. This means that the preference in admissions that is the most dramatic is based on state residency. The admit rate for undergraduate applications is 24 percent, making Carolina competitive but unlike Harvard, where single-digit admit rates have been the norm for years. But the 24 percent figure masks very different admit rates for those from the state (typically 41 to 43 percent) and from elsewhere (typically about 12 or 13 percent).

As a state institution, UNC also could consider approaches (such as plans that admit a set percentage of students from every high school) that haven't been embraced by elite private institutions. In this case, UNC offers evidence that it considered such a plan but that it wouldn't work. North Carolina also has different demographics than the nation. In the Tar Heel state, white people make up 71 percent of the population and black people make up 22 percent. Nationally, the population is more diverse (particularly among those of high school age), with Latino and Asian populations growing at fast rates.

At Chapel Hill, the undergraduate population is about 63 percent white, 10 percent Asian American (more than twice the Asian American share of the state's population) and 8 percent each black and Latino.

Evidence of Bias?

The SFFA brief (based on documents obtained in the discovery process of the suit) focuses on policies it describes as showing that applicants to Chapel Hill, regardless of where they come from, are treated differently in significant ways based on race and ethnicity. Some of the highlights:

• Chapel Hill sends recruiting materials to talented students it believes have a chance of admission. According to the suit, the university sent materials to black and Latino students with ACT composite scores of at least 26, while white and Asian students had to have 29 to be recruited.
• Analysis by the plaintiffs' experts calculated that an Asian American male North Carolina applicant with a 25 percent chance of admission to UNC (based on grades and test scores) would have his probability increase to over 67 percent if he were Hispanic, and to over 90 percent if he were an African American. For an Asian American male from out of state with a 25 percent chance of admission, the odds of admissions for an African American would be 99 percent, the brief says.
• Prior to the suit being filed, the suit says, UNC admissions officers were regularly briefed during admissions season on the makeup of admitted applicants and their likely yields (percentage of admitted applicants who enroll). That practice ended after the suit was filed.

Looking at these and other statistics, the brief argues, UNC can't possibly be reviewing applicants without a heavy emphasis on race (too heavy under Supreme Court guidelines). "UNC’s use of race is the opposite of individualized; UNC uses race mechanically to ensure the admission of the vast majority of underrepresented minorities," the brief says.

The brief also quotes from notes of admissions officers that suggest racial and ethnic status of some applicants is key. One quote: “She is an AA [African American] female, with solid everything that adds up to an admit for me.” Another quote: “I’m going through this trouble because this is a bi-racial (black/white) male.”

In another case, an admissions officer wrote of an applicant with a 26 ACT, “still yes, give these brown babies a shot at these merit $$.”

UNC officials did not respond to the specifics of the SFFA claims but did note that the university has stated that it never admits someone based solely on race, and that these statements aren't about recruitment efforts. The UNC brief also notes that, according to its experts, race explains only 1 to 6 percent of admissions decisions (based on which models are used). A UNC spokesperson said via email that "we aren’t going to respond to the misleading claims in their brief through the media" and pointed to evidence provided by an expert witness on some of the issues raised in the SFFA brief.

UNC's Defense

Much of the UNC brief outlines how the U.S. Supreme Court has affirmed the right to consider race in admissions. And the brief and defenders of those policies have noted that admission rates may not indicate the type of discrimination that SFFA alleges. Under holistic admissions, college officials consider the opportunities available to applicants, not just their demonstrable achievements. So an applicant who attends a low-income high school (as a disproportionate number of African American students do) would not necessarily have the same test scores, Advanced Placement courses taken or various other experiences as would a white applicant from a wealthy high school. The UNC brief argues repeatedly that such consideration is legal.

Even if admit rates may not determine legal outcomes, they play poorly for colleges defending affirmative action in public discussion. To the extent that legacy admissions also play poorly, UNC's situation is different. The university considers alumni status only for out-of-state students. So for most of those admitted, legacy plays no role. Of the 4,300 freshmen this fall, only 120 were out-of-state legacies.

A major theme of the lawsuits against Harvard and UNC is that race-neutral alternatives could have been considered and used instead of considering race. And indeed the Supreme Court rulings on the issue say that colleges must consider such alternatives and consider race only if other approaches wouldn't work.

On this issue, UNC has released analyses of some alternatives. For instance, it ran numbers on the impact of a "top 10 percent" plan such as that used in Texas. Such a system would have slightly increased the enrollment of black and Latino students (from 15 to 16 percent in the year analyzed). But the students would not have been as academically qualified, the analysis found. The average SAT of admitted applicants would have dropped from 1317 to 1262 and the projected grade point average of first-year students (based on the high school records and test scores) would have dropped from 3.26 to 3.16. Further, UNC's analysis said that so many slots would have been taken up with top 10 percent students that "hundreds" of worthy applicants from underrepresented groups who either not in the top 10 percent or who attended private or magnet schools wouldn't have been admitted.

UNC did studies of other possible approaches. In one, applicants would have been automatically admitted if they were in the top 7.5 percent of high-poverty schools and the top 3 percent at low-poverty high schools. While the share of black and Latino students would have increased, their average SAT score would have dropped by 100 points. In addition, the percentage having taken college-level courses in high school -- which UNC has found to be a key way to predict success at Chapel Hill -- would have dropped substantially.

The record, the UNC brief says, shows that holistic review -- including consideration of race -- produces a strong class that succeeds and also has diversity. Alternatives proposed by SFFA would lack either diversity or academic ability or both.

UNC acknowledges that considering socioeconomic diversity alone would yield that kind of diversity. But it says that racial and ethnic diversity are important and merit consideration.

"SFFA’s most drastic tactic is to effectively ask this court to impose a new constitutional standard," the brief says. "SFFA would have the court compel universities to abandon effective race-conscious admissions if they can achieve increased socioeconomic diversity, even to the detriment of racial diversity. This argument ignores that socioeconomic diversity -- although separately important -- is not the same as racial diversity."

UNC notes at the same time that it has promoted key measures to recruit students of all socioeconomic groups to the university. The Carolina Covenant aid program, for example, eligibility for which is based solely on family income, has been praised by aid experts nationally for allowing low-income students to graduate from UNC debt-free.

In the end, the UNC brief makes the argument that has been crucial to past Supreme Court rulings on the issue -- that diversity has educational value for all students. "University professors report that diversity promotes discovery and innovation and expands fields of inquiry," the brief says. "A diverse student body also improves students’ capacity to work effectively with others: exposure to diversity breaks down stereotypes, creates common understandings, and encourages empathy."