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Is affirmative action the college admissions gift that keeps on giving? It has been just over a year since the Supreme Court ruled for the second time in the case Fisher v. University of Texas and for the fifth time on the consideration of race in college admission, and here we go again.

A New York Times article in early August reported that the Justice Department had circulated an internal memo looking for lawyers interested in “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” That sparked speculation and fear that affirmative action may be another of the issues where the Trump administration plans to roll back progressive policies established by the courts and by Republican and Democratic administrations over the past 40 years.

A Justice Department spokesperson subsequently described the Times report as inaccurate, suggesting that the memo did not augur new investigations into race-based admission but was related to a previously filed complaint on behalf of Asian-American applicants to one institution. That did not appease skeptics who noted that the memo used the plural “investigations,” and that the project was under the auspices of an office populated by political appointees rather than civil servants. In any case the report has generated a new spate of articles and op-eds about affirmative action and related issues.

Are Asian-American applicants discriminated against in the college admissions process? It depends on what evidence you cite and how you interpret that evidence.

The primary argument against the idea that discrimination is going on is that Asian-Americans are not underrepresented in the student bodies of elite colleges and universities. At Harvard University, for instance, Asian-Americans made up 22 percent of admitted students this year, four times the percentage found at public secondary schools.

The argument that discrimination is going on is that the percentage enrolled would be higher in a race-blind admissions process. At places like California Institute of Technology, where race is not considered, the percentage of Asian-Americans is twice that found at Harvard. A 2009 study by Princeton University sociologist Thomas Espenshade suggested that Asian-Americans needed much higher SAT scores than other groups to have an equal shot at being admitted to elite universities.

I don’t believe, and don’t want to believe, that Asian-Americans applicants are intentionally discriminated against in the way that Jewish applicants were discriminated against nearly 100 years ago, as documented by Jerome Karabel in his book The Chosen. The villain in this case is not race but selective admission. A number of the pillars supporting and the assumptions underlying selective admission frustrate applicants (and college counselors).

The first of these is hyperselectivity. Twenty-five years ago, there were four institutions nationally that admitted less than 20 percent of applicants, and today the number is close to 10 times that. Selectivity has become an end in itself. One of my students recently attended an information session for a selective university and was surprised at how much focus was on sales, on encouraging applications. With greater competition, it is harder for admission committees to make fine distinctions among applicants, and more deserving kids get shut out.

A second is holistic admission. I believe that a selective admission process should be holistic, with a student’s credentials and background taken into consideration, but holistic admission can also place a shroud over the admission process. Different candidates are admitted for different (and often unclear) reasons.

The biggest factor is the change a generation ago, identified by Karabel, from admitting individuals to admitting and sculpting a class. Colleges and universities use the admissions process to help achieve a number of institutional goals, and students are admitted not because they are deserving but because they contribute in some way to a class that achieves institutional goals ranging from academic profile to diversity to revenue.

What that means is that every applicant is not competing equally for every place in the freshman class. I have heard an admissions dean from a selective liberal arts college say that 90 percent of applicants compete for 10 percent of the spaces. My black and Latino students have far better success being admitted to the nation’s elite colleges than students with better credentials, but so do my students who are recruited athletes and legacies. As a counselor I am glad for those who are successful and sad for those who aren’t.

It’s having a hook that provides the advantage. I tell my unhooked students that superb academic and personal credentials are necessary for admission, but not sufficient. No combination of grades, scores and activities guarantees admission to the Ivies and near Ivies.

The hidden currency in selective admission is uniqueness. The rarer any talent or quality, the more valuable it is, and vice versa. If every applicant does community service or plays a musical instrument, those things are unlikely to be distinguishing. One of my Asian-American students recently acknowledged the stereotype that many Asian-American applicants are pre-med and play musical instruments, and hoped that the fact that he played the viola rather than the violin might distinguish him. It didn’t.

The real question is how colleges and universities determine the composition of a freshman class. One of the arguments cited by those who believe that there is admissions discrimination against Asian-Americans at places like Harvard is that the percentage of Asian-Americans in the freshman class has remained consistent even as the percentage of applicants who are Asian-American has increased dramatically. Is that evidence of an enrollment quota or ceiling?

It may be evidence that selective admission involves reverse engineering. There certainly aren’t quotas, because quotas are illegal, but the admissions process is built around objectives either broad or narrow for various pieces of the freshman class and works back rather than establishing a process and seeing what class it produces. Hyperselectivity and holistic admission provide insurance for the institution, because it is difficult to prove that an individual applicant should have been admitted. A former Justice Department official called that “application laundering” in an NPR story.

Is selective admission fair, and should it be? The current process works well for institutions. But selective college admission can be seen as an example of a type of ethical dilemma known as distributive justice, where the challenge is finding a fair means of distributing a scarce good or resource. Unfortunately fairness ranks low on the list of objectives for most selective institutions. Several years ago I heard the dean of admission at one of the nation’s best-known universities tell students and parents, “I’m paid to bring in the best, most interesting freshman class. It’s not my job to be fair to you.”

I’m not sure we need another challenge to race-based affirmative action so soon after Fisher v. University of Texas, but I hope we will always question our assumptions about selective admission and strive for a process that serves the public interest as well as it serves institutional interest. That should be the gift that keeps on giving.

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