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Yale 62

A Response to the DOJ Lawsuit against Yale

By Lee Bolman

I’m tending to think this is kabuki theatre on the part of Justice. They want a story to remind the base that the Trump administration is defending the interests of white people who are being disadvantaged by liberal coastal elites. Justice says they’ll go to court if Yale doesn’t change its ways, and Yale is saying Justice didn’t even wait for all our data and the admissions process is fully compliant with Supreme Court precedent.

Lee in Budapest. April, 2018.

As far as I know, the case is very similar to the Harvard one in terms of the legal issues and the likely fact pattern. The difference is that Justice would be the plaintiff, and they’re defending whites as well as Asian-Americans. Yale will fight, which I’m sure Justice anticipated. Justice might actually file a complaint, triggering all the pre-trial maneuvering, but it’s unlikely that it would get to trial before the election. Should Biden\Harris get elected, this probably isn’t the kind of case they’ll be passionate about pursuing.

Politics aside, the underlying issues are significant and hard. Admission to any of the Ivies is a highly-valued, very scarce achievement, much more so than six decades back. Yale says it’s looking for students who will become “the leaders of their generation,” and emphasizes admitting those who will make the most of Yale’s resources, and “contribute most significantly to the Yale community.” Those are very broad criteria, presumably requiring complex and subtle judgments, given that Yale is only admitting about 6% of a highly-qualified applicant pool.

The narrow legal question is whether Yale is using impermissible, race-based criteria that disadvantage whites or Asian-Americans. That is part of a broader substantive question of how membership in many kinds of groups does or should influence admissions. Should Yale tip the scale a bit in favor of talented athletes even if their academic qualifications are lower than most admits? For how many athletes? How do you balance extraordinary artistic talent against impressive civic leadership or the grit and determination shown by students who have overcome enormous disadvantage in their life circumstances? How much if any advantage should legacy applicants receive? Given that Yale students are statistically much more likely to come from very affluent families, to what extent should Yale affirmatively seek students from poor families, who have even more to gain from an Ivy education?

If you’ve ever participated in a simulated admissions exercise where you’re asked to make judgments about multiple applicant portfolios, you probably learned how hard it is, and how intensely people can disagree. Yale has to answer these questions every year in an admissions process that gets a lot of public, sometimes legal, scrutiny. How do we believe Yale should respond?


See also comments by Larry Price here.

Lee and the Communications Team welcome your comments below or the submission of a longer opinion from other classmates.

5 comments to DOJ Files Lawsuit against Yale

  • Roman L Weil

    You know I’ve been an academic my entire professional life. My specialty since around 1975 has been research, practice, writing, and some teaching as an expert witness in court involving issues of economics and accounting. I have two sorts of thoughts about this lawsuit, one trivial and obvious once you think about it.

    DOJ asked for several years of data. Yale provided, so far, partial, I think three. DOJ has acted and Yale complains that DOJ has acted prematurely, not waiting for all the data. That’s likely PR BS. If you give me three years of data that shows clear patterns, then I don’t need five more years of data to file a complaint or ask for relief based on five more years of data. [I have no idea whether the first three years of data give the DOJ a compelling case, but I am prepared to believe that DOJ thinks they already see enough to say, “Yale your patterns of behavior are so clear in the three years of data we see that we don’t need to see more data to know you have misbehaved. Stop it.”] Yale’s PR that the DOJ has acted prematurely doesn’t seem well thought out.

    Now, if the DOJ hired me to make their case, I’d do the following. I’d take the application files of some of the Asians, Whites, and Blacks and redact the names, names of high schools, and other signals that would enable an experienced Admissions Officer to tell the race of the applicant from data in the file. I’d put aside the athletes and legacies. This is likely hard, but given the thousands of applicants, I suspect we could construct several dozen sanitized folders. Then, I’d ask Yale Admissions Staff to read these folders and make admissions decisions. First, I’ll guess defense counsel would not let the Admissions Staff engage in such experiments. But, second, I think you might agree with me that this is the way to show that race doesn’t enter the decision making process.

  • Lee Bolman

    I appreciate Roman’s thoughtful comments. The first issue he raises I see as a question for Yale admissions: what data had not yet been provided, and how difficult was it for Yale to provide it?

    Roman’s idea for a test might not be determinative for a couple of reasons. In the Harvard case on basically the same issues, the court found that the “personal ratings” for Asia-American applicants were somewhat lower than for other applicants, but so were the teacher recommendations, part of the input data to Harvard’s admissions process. Why that happens is an unanswered research question. Is there subtle bias at the high school level, or do Asian-American applicants assemble life portfolios that are somewhat different from other groups? So even if you expunge racial data from portfolios, there may be other evidence that correlates with race which will still be there.

    Adding white applicants into the mix, who were not part of the Harvard litigation, adds complexity, and I don’t know if that will produce more clarity or more confusion. One piece of the puzzle will be altered: Asian-Americans, at 20 to 25% are a significantly higher percentage of the Yale than the US population. Whites are underrepresented by the same criterion.

    The second reason Roman’s test might not be determinative goes to the central issue: is affirmative action permissible? Right now, Supreme Court precedent says yes, it is, which means that colleges can, within certain limits, consider race. They cannot use racial quotas, but they can, in effect, give extra points to certain applicants in the interests of enhancing diversity. Taking race out of the files would remove evidence that Yale is permitted, under current law, to use. As the judge in the Harvard case noted, affirmative action for one group will inevitably disadvantage some other group.

    The plaintiffs in the Harvard case are appealing. If Justice goes to court and gets a similar result at trial, they might appeal as well (though all this would happen after the presidential election). An underlying goal for the plaintiffs in both the Yale and Harvard actions is to get a case into the Supreme Court and hope that the current court will alter the rules.

  • Lee Bolman

    It occurs to me that Roman and others could have been misled by one sentence in my original post: “The narrow legal question is whether Yale is using impermissible, race-based criteria that disadvantage whites or Asian-Americans.”

    A more accurate statement would be that the legal question is whether Yale is using race in ways that do not comply with Supreme Court rulings.
    So it’s a question not of whether, but how, Yale factors race into admissions decisions.

  • Roman Weil

    I hope to start a discussion about the use of race, permissible use of race, in admissions with some analysis of hypothetical admissions decisions. See the thread over on Larry’s comments.

  • Chip Neville

    Roman, We are goin g to be discussing this at our September Zoom Coffee Hour. See you there,