Monday’s Discrimination Suit Against Harvard Has Red Herrings

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Illogical Tobacco Industry Defense Worked For Princeton, But Not Again

WASHINGTON, DC, October 15, 2018 – On Monday Harvard University will go on trial for allegedly illegally discriminating against Asian American on the basis of race in its admissions policy, and indications are that there will be several red herrings, including an illogical tobacco industry defense which apparently worked for Princeton in a similar circumstance, argues public interest law professor John Banzhaf, who has won over 100 cases of illegal discrimination based upon race, gender, religion, and disability.

First, many supporters of disadvantaging Asian Americans by giving preference to other applicants argue that it is no different from giving preference in admission to students who are athletes, play a musical instrument, are the offspring of Harvard alumni, etc., all of which clearly discriminate against students who do not fall into any of these categories.

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But this is very different, argues Banzhaf.

Generally, private institutions such as Harvard which - unlike state universities - are not bound by the  Constitution, may use whatever selection criteria they wish except where it is prohibited by law.

Statutes do, however, prohibit discrimination in admission as well as in other areas, but generally only for a very limited number of factors such as race, gender, etc.

Thus, since no statute prohibits discrimination based upon criteria such as athletic or musical ability, parentage, etc., it is illogical to seek to justify discrimination prohibited by statute (e.g., based upon race) with discrimination based upon perfectly legal factors such as athletic or musical ability.

If, at some time in the future, it is decided that basing admission decisions on these factors - or others such as good looks, height, BMI, or tobacco use - is contrary to the public interest, Congress or state legislators can simply amend their anti-discrimination statutes to include additional factors.

But, until that time, the fact that Harvard may discriminate against students who are not athletic, have little musical ability, or have a high BMI, for example, does not in any way defend or otherwise justify its alleged discrimination against Asian Americans based upon race.

Second, Harvard, may try to use the same tobacco industry defense that Princeton used so successfully when it was faced with similar charges, says the man who has been called "Mr. Anti-Smoking," and who, as the inventor of the Banzhaf Index, is also an expert in statistics.

As recently reported in Inside Higher Ed [IHE], the stated reason why the government found, in a prior investigation, that Princeton doesn't discriminate against Asian Americans, despite the overwhelming statistical evidence to the contrary, sounds very much like the clever but deceptive arguments in the  tobacco industry defense case made in the past to try to convince the gullible that smoking doesn't cause lung cancer.

Their paid spokesmen would point out - says professor Banzhaf, who frequently debated them - that, because in the tobacco industry defense case most smokers do not get lung cancer (which is true), and that some people who never smoked do get lung cancer (which is also true), smoking doesn't cause lung cancer (which is obviously false).

But, if that type of argument were valid, it could be used to prove lots of things; for example, that drunk driving (or jaywalking) doesn't cause automobile accidents.

Because most  drivers who drive drunk don't have automobile accidents, and because many accidents occur even where the drivers are not drunk, it should be obvious, by the same flawed reasoning, that drunk driving (or jaywalking) doesn't cause accidents.

In this light, consider that IHE says Princeton's successful defense can be summarized this way:  many non-Asians with great academic records are also rejected by Princeton, and some Asians "could also be found among some of the less than perfect applicants" who were admitted, so obviously, by this reasoning, there is no discrimination against Asians.

But this no more proves that Princeton was not discriminating against Asian American applicants than that the evidence noted above proves that smoking doesn't cause lung cancer, and that neither drunk driving nor jaywalking causes automobile accidents, says Banzhaf.

In many discrimination cases, the overwhelming strong statistical evidence against Princeton (now Harvard) should shift the burden of proof to the respondent, and force it to prove that there were one of more other factors which accounted for this vast discrepancy in admission statistics.

Only if the university could then prove, against the vast weight of the evidence, that these other possible factors - what the article calls "qualities and the overall strength of their applications" - were responsible for most of these huge disparities, would that defense succeed.

Sociologist Thomas Espenshade is quoted as suggesting that these factors might include things such as "teacher and high school counselor recommendations, essays, and lists of extracurricular activities."

But in virtually all cases these three factors - and others which might be suggested by the respondent - could be evaluated on a double-blind basis (e.g., outsiders evaluate them with any racial references removed), and the correlation between each, and the decision to admit, could be calculated.

If this were done, it is possible if not likely that racial discrimination - not one or more so-called holistic factors - would be the cause, since - as with smoking - the evidence is so overwhelming, says Banzhaf.


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