Focus on Striking Inequalities Against Historically Oppressed Minority Could be Telling 

WASHINGTON, D.C.  (August 3, 2017) –  Unlike earlier complaints that affirmative action is unfair to whites because of preferences given to black and Hispanic applicants, the newly disclosed Justice Department investigation is more likely to find unfair discrimination because it focuses on another oppressed minority rather than whites, and because the statistical evidence is so much more compelling, says public interest law professor John Banzhaf.

Department of Justice Makan Delrahim unfair discrimination
By U.S. government (Extracted from PDF file available here.) [Public domain], via Wikimedia Commons
Professor Banzhaf has brought more than 100 successful legal actions aimed at discrimination against blacks, women, Iranians, Jews, as well as the hearing impaired and, as the inventor of the “Banzhaf Index,” has considerable expertise in statistical analysis.

For example, in studying the odds of admission of various groups, Banzhaf cites reports that Asian Americans have to score on average about 140 points higher on the SAT test [8.7% more on a scale of 1600] than white students; a very large and well known gap sometimes called “the Asian tax.”

Even stronger evidence of discrimination is that Asians had to achieve an astonishing 450 points [28%] higher SAT score than black students to equal their chances of gaining admission to Harvard, even after controlling for other factors known to affect admission decisions.

While the large advantage in admission odds of blacks compared to whites [310 points or 19%] might arguably be justified because blacks are a minority which has historically been oppressed, especially by whites, the much larger negative gap in admissions percentages of blacks compared with Asians [450 points, 28%] cannot even arguably be justified by the same arguments since Asians are a minority group which has likewise been oppressed historically in this country.

Another very striking indication not only of unfair discrimination, but also of how many applicants are adversely affected, occurs when one compares the percentage of various minorities at top schools in states where racial discrimination is prohibited with those where it is permitted and appears to be practiced.   For example, Harvard’s 2013 Asian-American enrollment was about 18%, and other Ivy League colleges such as Brown, Columbia, Cornell, Princeton and Yale had similar percentages.

In stark contrast, the percentage of Asians during that period in top California schools was so much higher, and could hardly be based upon a statistical fluke, or a on a tendency of high scoring Asians to apply in California where they are protected by a law banning any racial preferences: e.g., the University of California had 34.8%, Berkeley had 32.4%, and Caltech had 42.5%.

If Harvard has admitted the same percentage of Asian American applicants as the average of these three, its total would have been over 300 additional, more than twice as many students, notes Banzhaf.

The latest Supreme Court decision ruled that colleges may still legally consider race as one factor, but only if they carefully document the need for diversity, show that affirmative action is necessary to achieve it, and periodically re-examine the program and its continuing necessity.

These exacting requirements may lead Harvard into a scathing and intrusive investigation under an administration which is no longer friendly to affirmative action, suggests Banzhaf.