A young man who was brought to the United States as a toddler, Jian Li, has shaken up the civil rights establishment and Ivy League colleges and rekindled a fierce debate over racial preferences at America's elite institutions of higher learning. For parents and applicants navigating the college admissions process, Li has stoked fears that the deck is stacked against even the most able students.

Li was, by any measure, a superstar college applicant: a perfect SAT score, near-perfect scores on the SAT IIs, a ranking in the top 1 percent of his class, and plenty of extracurricular activities. Yet Princeton turned him down. Although he got into Yale (and later transferred to Harvard), he suspected his exclusion from Princeton was due to discrimination against Asians. As a matter of principle, he decided to challenge it.

He filed a claim with the Department of Education's Office of Civil Rights (OCR) in August 2006 claiming that Princeton requires Asian Americans to meet higher standards for admission than whites, Hispanics, and blacks. Li cited a study by two Princeton researchers who determined that without racial preferences black admission rates would fall from 33.7 percent to 12.2 percent, and Hispanic acceptance rates would plunge from 26.8 percent to 12.9 percent, while Asians' rate of admission would go up from 17.6 percent to 23.4 percent. Asians would then make up over 30 percent, rather than less than 23.7 percent, of the students admitted.

In January 2008, over a year after receiving Li's claim of individual discrimination, OCR responded by announcing a schoolwide compliance review to determine whether Princeton's admission standards violated federal law prohibiting discrimination on the basis of race, color, and national origin. Princeton has denied that it discriminates.

Advocates on both sides of the racial preferences debate expect no quick resolution. OCR spokesman James Bradshaw says these investigations normally take six months. "Some take longer," however, he says, "and this is complex." He declined to say what information OCR had requested.

Whatever the merits of Li's claim, something is afoot at elite academic institutions that has adversely affected Asian admissions. On the basis of their academic performance and high school records, Asian Americans should be gaining admission in much higher numbers than they are. In his 2006 book The Price of Admission, Pulitzer Prize-winning reporter Daniel Golden called Asians "the new Jews, inheriting the mantle of the most disenfranchised group in college admissions." Golden observed, "Average SAT scores for Asian Americans admitted to the Ivy Leagues are substantially above those for any other group, including whites; frustrated Asian applicants refer to any score below the maximum as an 'Asian fail.'"

This was already the case back in 1988, when an investigation by OCR at Harvard found that Asian Americans were turned down in greater numbers despite higher test scores. The study also uncovered multiple notes by admissions officials in applicants' files that reflected stereo-typing of Asians. Still, OCR concluded that federal law had not been violated. A similar OCR investigation at UCLA in 1989, however, did find discrimination against Asians in the graduate math department. And in 1992, Boalt Law School of the University of California, Berkeley, was forced to drop a policy that restricted Asian admissions by comparing Asian applicants against each other instead of against the total pool of applicants.

The disparity between Asian test scores and GPAs and those of other groups has been much remarked upon. In a 1987 article in the Public Interest, John Bunzel and Jeffrey K.D. Au concluded that at Harvard in 1982, "Asian Americans had to score on average 112 points higher on the SAT than Caucasians who were admitted. The data reveal a similar pattern for Princeton in 1982 and 1983 and for classes entering Brown in 1979-1983." At Berkeley, a 1990 study showed that Asians and whites had a median GPA of 4.0, while blacks and Hispanics averaged slightly higher than 3.5.

Russel Nieli, a Princeton political science lecturer, contends that, although they deny it, elite schools strive mightily to reach a goal of 5 percent to 7 percent for blacks and a similar share for Hispanics in their admissions. In a June 30, 2008, article "Is there an Asian Ceiling?" he wrote:

Underlying the huge admissions preferences that Black and Hispanic students receive at the most competitive colleges is the simple fact that college bound students in these groups do not exist in sufficient numbers to satisfy the 5-7 percent representation goal that most elite institutions strive for. Were college administrators to enroll students primarily on the basis of academic performance without regard to race or ethnicity, projections show that Asian students would increase substantially at the most competitive colleges, while Black enrollment would sink to the 1-3 percent level, and Hispanic enrollment would similarly plunge, though somewhat less steeply.

Although Asians currently make up as much as 30 percent of the top college candidates as determined by SAT scores, National Merit and AP Scholar awards, and grades, the percentage of Asians admitted to Ivy League schools has held steady just below 20 percent. The consistency of Asians' share of elite college admissions is almost as noteworthy as the disparity itself. UCLA law professor Jerry Kang (who favors preferences for minorities) calls this "suspicious" and suspects that the top schools have decided "what constitutes a good mix."

In 2003, the U.S. Supreme Court cases concerning racial preference policies at the University of Michigan's law school (Grutter v. Bollinger) and undergraduate school (Gratz v. Bollinger) highlighted further evidence of great disparities between groups. At Michigan's law school, the admission rates of "preferred" minorities miraculously held steady between 10 percent and 17 percent in the years for which data were provided. According to Peter Schmidt's Color and Money, "Among applicants with certain grade point average and LSAT-score combinations, the university was admitting virtually every black applicant while white and Asian American applicants had a less than 1 in 40 chance of getting in." (Emphasis added.)

When racial preferences favoring Hispanics and blacks are lifted, the impact on Asian Americans is significant. A 2008 study of changes at the Universities of California, Texas, and Florida after racial preferences were eliminated showed:

At UCB [Berkeley], for example, Asian-American FTIC [first time in college] enrollment jumped from 1,277 or 37.30 percent in 1995 to 1,632 or 43.57 percent in 2000 following the implementation of Proposition 209, and, since that date, the number and percentage of Asian-Americans has increased steadily at both UCB and UCLA, reaching 46.59 percent at UCB and 41.53 at UCLA. For UCSD [San Diego], the number of Asian-American students continues to increase as both a number and percent of the student body, from 1,070 or 35.93 percent in 1995 to 1,133 or 36.33 percent in 2000 and to 1,684 or 46.88 percent in 2005. At Texas, the number of Asian-American FTIC students went from 886 or 14.26 percent in 1995 to 1,311 or 17.74 percent in 2000 and has leveled off at 17.33 percent in 2005, while in Florida, which has a much smaller Asian-American population, the UF numbers grew from 342 or 7.50 percent in 1995 to 518 or 7.84 percent in 2000, and to 531 or 8.65 percent in 2005.

The authors concluded:

Clearly in an open admissions process where affirmative action does not enter into enrollment decisions and where legacy and donor issues are discouraged, Asian-American students compete very well. What the data also reveal is that Asian-American students filled the gap as black and Hispanic enrollment fell following the elimination of affirmative action in California.

(Critics of Proposition 209, which banned use of racial preferences in California state schools, contend that pre- and post-209 data in California are unreliable.)

These and other studies have convinced many that racial preference systems at top public and private colleges in all likelihood have deprived Asian Americans of slots that went to less academically qualified applicants. Steve Balch, president of the National Association of Scholars, says bluntly, "If a merit-based system replaced the current system, Asians would be the greatest beneficiaries." As Lee Cheng, secretary and cofounder of the Asian American Legal Foundation (which opposes racial quotas and preferences and filed amicus briefs for the plaintiffs in Grutter and Gratz), says, "The bottom line: If you hold people to a different standard it is discrimination."

So are elite schools like Princeton illegally discriminating against Asian Americans in the name of achieving some ideal racial mix? Hard evidence is difficult to come by because Princeton, like all elite private colleges, jealously guards information that would help divine what its admissions office is up to.

The Supreme Court, moreover, has given them ample room to operate. In Grutter and Gratz, the Supreme Court held that explicit quotas were illegal, but race could be "one of many factors" in college admissions. In short, colleges could continue their quest for diversity, provided they exercised individual decision-making and avoided stark quotas and blatant numerical boosts for minorities.

Largely in response to these cases, colleges have devised "holistic" review processes, which rely on admissions officers' subjective views of students, yielding a sort of gestalt assessment that pretends to evaluate the "whole student."

Like many other racial-preference foes, Balch thinks this system is nothing but a dodge to mask the effort to maintain a racial balance because colleges "have absorbed the notion we need a campus that looks like America." Cheng concurs that the current system is designed "to fulfill a distorted and unlawful view of what constitutes diversity." Opponents of racial preferences perceive a great deception at work to mask the true objective, which is to get more blacks and Hispanics into top colleges. Nieli writes:

There is no other area of academic life, with the possible exception of the relaxation of standards for athletic recruits, where college administrators, admissions deans, and college presidents are more likely to lie--and to engage routinely in deception and double-talk--than on the question of racial preferences in their respective institutions.

The result of nondisclosure and the fog surrounding diversity policies: No one has been able to figure out exactly what the admissions officials are doing. Cheng contends that colleges' defense for nondisclosure of the data--that they will be "misinterpreted"--is a weak excuse, arrogantly implying that only the schools themselves can grasp the meaning of the data. He believes the real reason for secrecy is to prevent the public from seeing the enormous disparities between applicants from various groups.

But even groups supportive of the preference system are dismayed by the unavailability of information. Khin Mai Aung, an attorney with the Asian American Legal Defense and Education Fund, says, "Institutions are understandably afraid of litigation, so they haven't made their policies very public." She explains that some colleges won't disclose to her organization which racial groups are included in their diversity plans, and "whether underrepresented Asian ethnicities [e.g., Cambodians, Laotians] are given affirmative action consideration." Vincent Pan, executive director of Chinese for Affirmative Action, likewise acknowledges that the current system is "opaque" and frustrating. Both call for more transparency and disclosure by admissions programs.

But if colleges are taken at their word--that their goal is an exquisitely diverse array of racial groups, a veritable model U.N.--applicants from a group whose academic records would qualify them for admission in large numbers must be restricted if they don't magically fit their allotted piece of the pie. Kang acknowledges that there will be "winners and losers" when the goal is a specific racial mix. A former attorney for OCR explains that these schools "appear to be trying to make an ideal city."

A November 20, 2006, Harvard Crimson editorial explained the rationale:

Essentially, any group which is overrepresented in universities compared to the overall population--Asian-Americans and Jews jump to mind first--will face de facto discrimination in the admissions process so long as some preference is given to underrepresented minorities. . . . [T]his is very unfortunate for overrepresented groups, but is necessary to ensure that applicants from underrepresented groups can still be admitted.

Pan of Chinese for Affirmative Action echoes the diversity rationale, counseling that we should not, after all, be thinking of admission to elite schools as a "prize for high school performance." Rather, he argues, "Universities have a public responsibility to prepare future leaders, and we need to prepare a generation of leaders that will look like America." He concedes, "It does seem arbitrary at times," but he insists that "it does work out. The 'best applicant' is thinking about it the wrong way."

It is ironic that advocates of racial preferences have taken refuge in an entirely subjective, idiosyncratic decision-making system. Michael Rossman, general counsel of the Center for Individual Rights, notes that civil rights advocates in the employment realm railed for years against subjective selection processes, suspecting that, when decision makers are left to their own devices, "subconscious opinions lead to choosing people who look like them." Civil rights advocates opined that more objective criteria were needed to ensure everyone was fairly considered and the best candidates were selected.

Opponents of racial preferences concede that many important life decisions are subjective and take into account a whole variety of factors to be weighed in good faith. Unfortunately, there is reason to believe that the "holistic" process is biased. At a 2006 meeting of a national association of college counselors, several of those advising high schoolers admitted that Asians are in essence battling against each other and against the stereotypical view that they are boring, insular, only interested in math, shy, and excessively bookish. A report on the meeting from Inside Higher Education noted: "One high school guidance counselor told the panel of experts that a sign of the distrust of the system is that he is increasingly asked by Asian American students if they would be better off applying to college if they declined to check the race/ethnicity box on the applications."

Rosalind Chou, author of The Myth of the Model Minority, explained in a July interview that

Asian Americans are associated with academic excellence and overachievement. Whereas black and Latino students are negatively stereotyped in academia. Either way, these stereotypes are externally imposed and can have a great effect on individual students internally, but also may impact other students, their teachers, professors, and administrators. Stereotyping, whether positive or negative, can be damaging.

In its 1989 review of Harvard, OCR found notes in applicants' files with comments to the effect that Asians were "grinds." In his book Golden wrote:

Asians are typecast in college admissions offices as quasi-robots programmed by their parents to ace math and science tests. Asked why Vanderbilt poured resources into recruiting Jews instead of Asians, a former administrator told me "Asians are very good students, but they don't provide the kind of intellectual environment that Jewish students provide."

One activist, convinced that admissions officers think of Asians as one-dimensional, privileged, and uninteresting, says that this "definitely is of concern. They paint the Asian community with a broad brush." One result is that Asians with a refugee experience or whose parents are not wealthy immigrants from East Asia do not get sufficient credit for overcoming adversity. Indeed, Jian Li grew up in a home where English was not spoken, a factor that is supposed to provide evidence of a student's ability to overcome hardship and boost his chances in the "holistic" process.

Negative bias, moreover, may be responsible for a cap on the number of Asians schools are willing to admit. Kang contends that when elite institutions reach a critical mass of Asians, such that the institution might "flip" from majority white to majority Asian, people "get quite uncomfortable." No less a figure than President Bill Clinton gave away this mindset when in a 1995 interview with the Sacramento Bee he declared that if it were purely an academic consideration, "there are universities in California that could fill their entire freshman classes with nothing but Asian Americans." The clear implication: Schools must restrict Asians or they will be inundated.

Cheng has interviewed prospective students for his Ivy League alma mater for 14 years and says that even within the vague contours of the "holistic" system the standard for Asian Americans is "not close" to that of other groups. Indeed, Golden's research on "the new Jews" offers one example after another of Asian applicants with varied and impressive extracurricular activities, who had overcome adversity and displayed every mark of "leadership," yet were denied admission at elite schools where less-qualified minorities and whites gained entry. But by constructing opaque selection systems, diversity advocates have made it difficult, if not impossible, to prove the extent to which negative stereotypes actually are affecting admissions of Asians.

In fact, there is another reason colleges are quite happy with nontransparent, mysterious admissions processes: They protect the luster of the elite schools, perpetuating the idea that these high-minded institutions, conduits to successful careers, are immune to base considerations like finding star athletes or pleasing top donors by admitting their underperforming offspring. If colleges were to pull back the curtain, then the public, alumni, and potential applicants would see how "far down" into the pool admissions officers go, not just to create diversity but also to create geographic balance and accommodate legacy students, children of the rich and famous, and athletes. (Athletes may have SAT scores 200 points below those of "regular" admittees.) Once these considerations are revealed, the luster of the institutions might be dimmed. Says Kang, "Once you see how sausage is made in that factory, then for that institution, some of mystique is lost."

In their defense, elite colleges often explain the "holistic" process with the claim that they really are seeking well-rounded people, and "half the students with perfect SATs are turned down." But that leaves the question, What percentage of the rejected students with "perfect SATs" are Asians? Virtually no one who has studied the matter believes that blacks or Hispanics with perfect SAT scores are denied entry to any elite school. A former OCR attorney confides that, to the contrary, the elite schools fight feverishly over a few thousand academically qualified blacks and Hispanics.

In addition, legacies, athletes, and children of wealthy donors account for an increasingly large share of the admissions--over 20 percent--at elite schools, resulting in fewer spots for all students who lack a compelling "hook." Both independent observers and racial-preference supporters contend that these nonracial preferences may play just as great, if not a greater, role in limiting the spots that highly qualified Asians might fill. Even geographic diversity may adversely impact Asians, who tend to be concentrated in a few urban centers.

In a recent speech Golden explained:

Elite colleges, most of which haven't increased their student body size significantly in years, reserve slots for children of privilege while turning away outstanding middle-class and working class applicants, mainly white and Asian-American. As Notre Dame's admissions dean told me, "The poor schmuck who has to get in on his own has to walk on water."

But other preferences, whether for the rich, athletic, or famous, while unfair and galling, do not constitute invidious, illegal racial discrimination under the Constitution. What is illegal are overt moves, even masked in diversity jargon, to specifically limit the influx of any racial group.

As for Li (and others who may seek to challenge the current system), it could be months or years until OCR finishes its attempt to establish illegal discrimination. It is far from certain that OCR will uncover careless comments in files, telltale emails, or a conscience-stricken admissions employee willing to tell the inside story. In the absence of such proof, it is not clear whether OCR will use the available statistical evidence to construct, as is commonly done in such claims, a circumstantial case for discrimination.

But even if OCR cannot prove a legal violation (which must be more than just a showing that race was one consideration), suspicion and animosity will continue so long as the goal of the admissions process is not a merit-based consideration of each applicant, but admission based on each racial or ethnic group's allotted share. Some of this mistrust may be misplaced, of course, since many excellent students are rejected for legitimate reasons. But given the schools' lack of transparency about nonracial preferences, it is understandable, as Peter Schmidt writes, that "whites and Asians leap to the conclusion that race-conscious admissions have kept them or their children out of a prestigious college."

Rampant suspicion, justified or not, is one of the many harms flowing from the current system. Nieli contends that blacks admitted to elite schools often feel they are looked down upon as undeserving, while rejected whites and Asians stew about groups who are less worthy depriving them of opportunities they feel they've earned. He writes, "Interracial friendships and understanding--the supposed goal of affirmative action diversity--are not likely to be struck in such an environment. If you doubt this, just look into the self-segregated cafeterias and social clubs at almost any mixed-race college campus today."

Although Asians are the obvious victims of racial preferences, Cheng learned firsthand as a student that some whites wrongly suspected that he and other Asians got preferential treatment under the diversity system. Cheng explains that students know what grades and test scores they and their peers received and see the perverse outcomes. Resentment, moreover, is heightened, he argues, because the vast majority of racial preferences are extended not to the poor, but to middle and upper class members of preferred groups. He says, "There is resentment and stereotyping when the playing field is not level."

The process is an eye-opener for high school seniors and parents who operated on the belief that hard work and excellence would get them into a college of their choice. Nieli described in a recent article the startling realization that some applicants and their parents face:

They watch with bewilderment and dismay as some of their much better qualified white and Asian classmates get the thin letters of rejection from some of the very same elite institutions that have sent out the fat letters of acceptance to some of their much less qualified black and Hispanic peers. "It's not fair," they say, and their resentment can oscillate in its focus between the individual students who benefit from racial preferences and the institutional policies which support them.

If the harm to Jian Li personally seems abstract--he did study at Yale and Harvard, after all--the sea of disappointment, resentment, and stereotyping perpetuated by college admissions conforming to a preordained diversity pattern is real. Nevertheless, the behavior of elite institutions won't change soon. Few people have the fortitude to file lawsuits. As Rossman notes, "Lawsuits are expensive and difficult, and even when you get a positive result [the colleges] have a lot of ways to get around it."

Moreover, admissions officials no doubt believe they are serving noble ends. As Shelby Steele explained in White Guilt, many baby boomers who came of political age in the Civil Rights era have a strong desire to right the wrongs of the past by using affirmative action to help propel more blacks and Hispanics into the ranks of national leadership. Nieli assumes that "things will change only when the post-60s generation passes from the scene."

Whether Jian Li can provoke college administrators--and more important the general public--to insist we abolish the racial spoils system before that remains to be seen.

Jennifer Rubin, an employment attorney, is the Washington editor for Pajamas Media and blogs at Commentary magazine's contentions website.

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