Excerpted From: Grace W. Tsuang, Assuring Equal Access of Asian Americans to Highly Selective Universities, 98 Yale Law Journal 659 (January, 1989) (134 Footnotes) (Full Document)


GraceTsuangYuanIn the post-Bakke era, many institutions of higher education have sought to maintain their commitment to minority admissions programs without the use of explicit racial quotas. In Bakke, Justice Powell deemed the Harvard Admissions Program, which considers race or ethnic background a 'plus' in evaluating the applicant, the ideal means to achieve ethnic diversity. Recently, critics have alleged that a new type of quota, established under the auspices of diversity, sets an upper limit on the number of Asian Americans admitted to highly selective institutions.

This Note discusses the legal basis for a claim by an Asian American applicant denied admission to a public or private university due to an upper limit quota. An Asian applicant would not challenge the legality of preferential admissions nor allege that a Black or Hispanic had gained entrance in place of a better qualified Asian. Instead, the basis of the claim and, thus, the bulk of the data presented here, would focus on the treatment of Asian Americans compared with Caucasians, a group never intended to be the beneficiaries of affirmative action. An Asian applicant would not seek special consideration because of her race, but equitable treatment regardless of her race.

The statistics presented in Section I provide an overview of the Asian admissions problem as exemplified by four universities and outline the type of evidence plaintiffs should seek during discovery to challenge a university's admissions practices. Section II analyzes available legal theories and sets forth the type of allegations that should be included in a complaint against any institution. Finally, Section III offers suggestions for fashioning a remedy that would enhance the fairness of admissions practices and reduce the obstacles faced by Asians seeking entrance to the nation's highly selective universities.

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This Note has provided a framework for examining the allegations of an upper limit quota on Asian American admissions. The four sample universities have illustrated the type of evidence necessary to challenge the admissions process and the legal theories upon which to plead a complaint. A suit can be brought against a public institution based on either the equal protection clause or Title Vi, but such a suit would require evidence of discriminatory intent and would encounter difficult proof problems. A more promising approach is to challenge either a public or a private university on the basis of Title VI regulations, incorporating a disparate impact standard. If an Asian plaintiff is successful, a court order could mandate changes in specific admissions practices and require universities to articulate their subjective criteria for determining admissions.

The Asian admissions issue raises complex questions which may be unresolvable, but ultimately, it calls for an affirmation of the principles of racial equality fundamental to the promise of America.