What Was Missed in the Admissions Fraud Case

Andrew Lelling, the US attorney for Massachusetts announced indictments in “Operation Varsity Blues,” in which two SAT/ACT administrators, one exam proctor, nine coaches at elite schools, one college administrator and 33 parents were charged in a bribery scheme to get otherwise unlikely students admitted to some of the prestige universities in our country, through various means, such as athletic admissions for non-athletes, smarter students taking ACT or SAT entrance exams and outright bribery payments.

How utterly shocking . . . not! A degree from Yale or Stanford is worth a lot more than one from the University of Oklahoma or, Heaven forfend! a regional state college like Morehead State University.

Of course, some people with famous names manage to matriculate at top colleges despite being less than the brightest people: Amy Carter at Brown University, Chelsea Clinton at Stanford and David Hogg getting admitted into Hahvahd come to mind.

Mr Lelling said:

This case is about the widening corruption of elite college admissions through the steady application of wealth combined with fraud. There can be no separate college admission system for the wealthy, and I’ll add that there will not be a separate criminal justice system either. For every student admitted through fraud, an honest, genuinely talented student was rejected.

It was that last sentence that caught my eye. Let me put it another way: For every student admitted through Affirmative Action, an honest, genuinely talented student was rejected.

Thud! Not a whole lot of people will like that formulation, but consider the history, with many white students denied admission to allow students with lower grades and lower test scores to matriculate at better colleges. Harvard University is being sued by Students for Fair Admissions, for allegedly discriminating against prospective students of Asian ethnicity to favor lesser qualified applicants.

In the 1920s, Harvard was worried that increasing Jewish enrollment would depress the white Protestant elite portion of the student body, Harvard’s traditional core constituency, and set up a “Jewish quota.”. Of course, that wasn’t illegal then. Nearly a century later, during a supposedly more enlightened time, Harvard is at it again: the ‘wrong’ top students are applying, and that’s just not good.

This is the kind of mischief that Affirmative Action has wrought. First we had institutions discriminating against white applicants, because, of course, white Americans were the beneficiaries of racist policies in the past. That the applicants were not the ones who engaged in such stuff in the past — they were too young — didn’t seem to matter. Apparently this new form of ‘corruption of blood’ was perfectly fine, thank you very much.

But Asian-Americans have hardly been the beneficiaries of slavery, or Jim Crow, or segregation in American history. Americans of Japanese ancestry were interned during World War II, for fear they were somehow going to aid in the Japanese invasion of our west coast. Many Asian-Americans here today are the refugees and descendants of refugees from the various wars in southeast Asia. I have personally known, and worked with, several men whose families fled from Vietnam and Cambodia. They came here with little more than the shirts on their backs. How, I have to ask, does Harvard justify discriminating against them?

The Wall Street Journal described what has happened: while alumni interviews tended to give Asian-American applicants the highest aggregate scores, Harvard’s admissions officers “assign Asian-Americans the lowest score of any racial group on the personal rating.” One could easily see if Asian applicants received only the second highest scores that it might simply be an inadvertent disparity. But when alumni interviewers give Asians the highest scores, and the university’s employees give them the lowest, it becomes difficult to believe anything other than someone in the administration has ordered lower scores.

I have noted, many times, the Supreme Court case of Grutter v Bollinger, 539 U.S. 306 (2003), in which the Supreme Court approved the Affirmative Action program of the University of Michigan’s law school. The Court agreed that the law school’s admissions policies, which used race as one of many factors in considering acceptance.  There was, however, a companion case, Gratz v Bollinger, 539 U.S. 244 (2003), in which the undergraduate admissions policies of the University of Michigan were found unconstitutional, because they used “‘predetermined point allocations’ that awarded 20 points towards admission to underrepresented minorities,'” — a perfect SAT score was worth only 12 points — “‘ensures that the diversity contributions of applicants cannot be individually assessed’.”

It appears, at least to me, that the disparity between alumni interviewers and university admissions officials can only be a conscious attempt to evade the requirements of Gratz, and fool everyone into thinking that Harvard is following the Grutter restrictions.

If racial discrimination in admissions and hiring decisions is wrong when such favors white applicants over minorities, then it is also wrong when it favors any particular racial or ethnic group over any other group. In the case of Harvard, there isn’t even the fig leaf coverage that discriminated-against Asians are part of a previously favored group. If “(t)he stated justification for affirmative action by its proponents is that it helps to compensate for past discrimination, persecution or exploitation by the ruling class of a culture, and to address existing discrimination,”>¹ then Harvard’s discrimination against Asian applicants fails because Asian-Americans were certainly not part of “the ruling class of (the) culture” nor does it somehow redress existing discrimination.

We have had Affirmative Action programs in place in this country for over six decades now, and never yet have we managed to ‘correct’ past discrimination by using present discrimination. We have never somehow gotten it right, because doing something wrong never gets things right. The only way to end racial discrimination is to end racial discrimination, and that means that Affirmative Action has to be ended.

If admission gained through bribery and fraud means that “an honest, genuinely talented student was rejected,” then surely admissions gained through Affirmative Action do the same thing, on a much larger scale.

Fortunately, when Justice O’Connor wrote the majority opinion in Grutter, she concluded with something that the left may well wish she hadn’t:

The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Richmond v. J. A. Croson Co., 488 U.S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977) (“It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all”).

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317—318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Twenty-five years, huh? Grutter v Bollinger was announced on June 23, 2003, which was slightly less than sixteen years ago. On June 23, 2028, that twenty-five years will have elapsed, and that’s only nine years, three months and eleven days from now.

The Supreme Court didn’t take into consideration those honest and genuinely talented students who were rejected to allow someone with poorer test scores and lower grades into prestige colleges, but now the Department of Justice has recognized that is what has happened in the Operation Varsity Blues case. We’ll still have to wait, I would imagine, for the twenty-five years to elapse, but at least now there ought to be some pressure to enforce completely race-neutral collegiate admissions and hiring.
¹ – “Affirmative Action”. Stanford Encyclopedia of Philosophy. 1 April 2009.
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