New Front in Fight Over Affirmative Action

Supporters of the lawsuit charging that Harvard University discriminates against Asian American applicants have frequently suggested that the University of California's campuses provide a model for college admissions. In 1996, California voters passed Proposition 209, barring state institutions from considering race and ethnicity in admissions. At the most competitive campuses in the UC system, Asian Americans now outnumber students of other groups. At UCLA, for example, 29 percent of students are Asian American, 27 percent are white, 22 percent are Hispanic and 3 percent are black.

But a lawsuit filed in California court Thursday suggests that the university system may well be considering race and ethnicity in admissions, in ways that favor black and Latino students and hurt Asian Americans. The lawsuit seeks detailed information on applicants to UC campuses (without the applicants' names) along with enough information to consider whether there are different standards used to evaluate these applicants, based on race and ethnicity, and how those who are admitted and enroll fare as students. The suit was filed by Richard H. Sander, a professor of law at UCLA who is a longtime critic of the consideration of race in admissions. He is the co-author of Mismatch (Basic Books), which argues that minority students who benefit from affirmative action in admissions may end up enrolling at institutions where they may not thrive. (Many in higher education dispute the theory and point to high graduation rates for black and Latino students who enroll at elite colleges that consider race in admissions.)

Sander said that he asked for the detailed information and was turned down by UC, in violation, he says, of California's open-records laws. And he charges that this is part of a cover-up of evidence that the university system is considering race in admissions.

A UC spokeswoman said via email that the system complies with the state ban on consideration of race. As to the open-records request, she said that Sander is asking for documents that don't exist. "Sander has asked us to prepare for him a specific data set that we do not have, and, apparently, he is suing to compel us to do so. Under the California Public Records Act, we are not legally obligated to do so," she said.

In announcing his lawsuit, Sander also released a report that he says shows the consideration of race in admissions -- after Proposition 209 -- in ways that have cost Asian Americans admissions slots.

The University of California uses holistic admissions in which candidates are evaluated on a range of factors, and there is no formula that assures admissions to those above some combination of grades and test scores. The report Sander released was prepared at UCLA's request in 2014 by Robert Mare, a sociologist at UCLA, who had access to the kinds of data Sander is seeking. Mare had such data for those admitted to UCLA from 2007 through 2011. The report does not allege discrimination but looks at how various groups fare in various parts of the admissions process, comparing the admissions rates of different racial and ethnic groups when factors such as socioeconomic status were considered.

In the primary review, the report found, candidates were considered on a range of academic factors (grades, test scores, rigor of curriculum) and decisions were relatively straightforward. But UCLA also does a "supplemental review" of some applicants.

Mare found that in this review, admissions officials "place considerable weight on socioeconomic hardship, challenges, and limits to academic achievement. Among applicants who are otherwise similar in measured academic qualifications and challenges, African American and Latino applicants are disproportionately represented in supplemental review. In both final and supplemental review, African American applicants receive somewhat more favorable and 'North Asian' (Chinese, Japanese, Korean, Indian/Pakistani American) applicants receive somewhat less favorable holistic read scores than applicants" in the rest of the review process.

Part of the Mare report -- obtained by Sander through an open-records request -- looks at applicants by race/ethnicity for several years, noting those who -- all other factors being equal -- would have been admitted based on standard criteria. Over a five-year period, he notes that more than 1,300 Asian American applicants in this group were denied admission, while black and Latino applicants were admitted.

University of California officials have disputed similar analyses by Sander in the past, noting that holistic review does not assume that there will be equal outcomes for applicants from all groups, and that some factors considered in holistic review (such as socioeconomic status) may be reflected differently in different applicants.

Via email, Mare also questioned whether his findings demonstrated illegal discrimination. "I would not say my report is a 'smoking gun,' mainly because to put it that way presumes a crime has been committed," Mare said. "Professor Sander is a lawyer and he is perhaps qualified to make pronouncements about such things. I found some evidence of disparate admission rates (net of observed qualifications), but whether that’s a crime or part of a defensible admissions policy is for lawyers, judges, and maybe juries -- not social statisticians -- to sort out. "

The outcome of the Sander suit, of course, can not be known on the day it was filed. But even as admissions leaders nationwide await a ruling in the Harvard case (expected next year) and the expected appeals, whatever happens, the Sander suit shows that many universities could face scrutiny -- regardless of what happens in the Harvard case.