Thursday, August 2, 2018

New Documents Released As Part Of Discrimination Lawsuit Against Harvard

NPR. July 30, 20185:24 PM ET

AILSA CHANG, HOST: 
A treasure trove of documents about Harvard University's admission process is revealing secrets about how America's oldest university selects its students. A federal court has unsealed hundreds of admissions applications and documents in recent weeks as part of a lawsuit alleging the university discriminates against Asian-American applicants. The court papers shed light on how the university considers an applicant's socioeconomic status, race or personality to give preference on who gets in. The lawsuit could have important implications for affirmative action.
And joining us now to discuss what we're learning from these new documents is Anemona Hartocollis from The New York Times. Welcome.
ANEMONA HARTOCOLLIS: Thank you, Ailsa.
CHANG: So you've been poring through all of these documents produced by Harvard University about its admissions process. I'm curious. What struck you as particularly damning for the university's case? Was there anything?
HARTOCOLLIS: Yes. I and two of my colleagues have read hundreds of documents. And one of the things that has stood out for me is something that Harvard calls lopping, which according to the court papers takes place at the end of the admissions process when the admissions office looks at the racial balance of the class and adjusts it.
CHANG: So race is the determinative factor for who gets lopped from the list at the very end?
HARTOCOLLIS: Well, that's a good question. I think that that's what the plaintiffs want to find out.
CHANG: There was this other phrase that came up, and that was tipping or to tip. What does that mean?
HARTOCOLLIS: A tip, as I discovered through a document in the files - a Department of Education investigation in the late '80s - is a preference. And it is given to certain categories of applicants according to the plaintiffs. And those would include racial and ethnic minorities and kids whose parents graduated from Harvard and recruited athletes among others.
CHANG: Though at the end of the day, Harvard admits some around 2,000 students per year. And if you look at the academic records of the students applying, it's pretty overwhelming. There are way more than 2,000 applicants year after year who have perfect SAT scores and straight A's. So Harvard can't let them all in either. They - it does need to have other criteria to select students. I guess - does this fight come down to whether Harvard is using the correct criteria?
HARTOCOLLIS: I think it comes down to whether Harvard is misusing its criteria. I think Harvard probably has a large degree of discretion. The Supreme Court has ruled that universities have a large degree of discretion in deciding whom to admit but that they cannot treat different groups in a disparate way. And the charge here is that Asians are being treated differently because of their race from everybody else.
CHANG: And what is Harvard's best argument to that?
HARTOCOLLIS: First of all, Harvard strenuously denies any discrimination and says that its admissions system is a carefully calibrated way of curating an ideal class that will help shape the future of a pluralistic society in America.
CHANG: Anemona Hartocollis covers higher education for The New York Times. Thanks very much for joining us.
HARTOCOLLIS: You're welcome, Ailsa.
See also: "Top U.S. Universities Back Harvard in Affirmative-Action Case"

Tuesday, July 31, 2018

Report: College Ended Affirmative Action and Didn't Tell Anyone

"The College of Charleston stopped considering race in admissions in 2016 but didn't tell anyone about the shift, The Post and Courier reported Sunday.
While affirmative action policies are debated intensely at many colleges and in some states, it is unclear how the shift at Charleston remained under the radar. But it comes at a time of renewed national debate about whether colleges should consider race in admissions, as most colleges with competitive admissions do.
According to The Post and Courier, the college shifted from a policy to consider race to one in which it would consider whether students are the first in their families to go to college.
“The Admissions Committee recognized that our student-of-color enrollments were increasing substantially while we were infrequently using race as a factor in the admissions process. So we decided at that point that that holistic review process and all the other many diversity initiatives that we were using were already having a strong impact,” Jimmie Foster, vice president of enrollment planning, said in an interview with the newspaper. The college also started offering automatic admission to students in several nearby counties.
While nonwhite enrollment has gone up, that is not true of black enrollment. Black enrollment hit a high of 8 percent in 2002, the newspaper said. The most recent data from the U.S. Education Department say that 7 percent of undergraduates at the college are black, and 80 percent are white. Data from the U.S. Census Bureau indicate that the state's population is 27.3 percent black and 68.5 percent white.
The shift in admissions policy took place during the presidency of Glenn McConnell, a politician selected by the board in 2014, over the objections of faculty members and civil rights leaders. Many critics noted his support for flying the Confederate flag, his ownership of a store that sold Confederate memorabilia and his posing in Confederate military uniforms. McConnell, who recently stepped down, citing health reasons, said at the time he was appointed that his association with the Confederacy was based on his devotion to history and states' rights.
The Post and Courier asked Foster if the shift had been due to an order from McConnell, and he said, "Absolutely not." Foster and a college spokesman did not respond to requests for comment on Sunday."

Harvard Answers Back on Affirmative Action

"New briefs from university provide an inside look at terms like "standard strong" and examples of Asian applicants whose ethnicity was viewed favorably and dispute statistical analysis provided by those claiming anti-Asian bias.

In June, the group suing Harvard University over alleged anti-Asian bias in admissions released a slew of documents to back its case. The documents suggested that it is much more difficult for Asian-American applicants than for comparably qualified others to get into Harvard (where it's difficult for anyone to get in). Some of this related to Harvard's preferences for alumni children and athletes, preferences that the university has long acknowledged but to which it has not drawn attention.
There were also documents suggesting that low-income Asian applicants don't get the same help in admissions as do low-income applicants of other groups. While a single set of briefs doesn't determine the legal outcome in court cases, the June filings were a public relations win for Students for Fair Admissions, the group suing Harvard. Much of the coverage was critical of the university, with even some supporters of affirmative action saying that Harvard didn't look good.
Harvard disputed the filings at the time, but Friday was the university's turn to file its lengthy legal arguments. Technically, the briefs are about whether the federal court considering the case should award summary judgment (deciding the case without a full trial). But the Harvard documents also provide insight into how the university is mounting its defense, which by proxy may be a defense for other colleges to consider race in admissions.
With the retirement of Justice Anthony Kennedy from the Supreme Court and subsequent uncertainty over support for affirmative action on the high court, the Harvard case has arguably become more important than it was to start with -- and is increasingly seen as the next case likely to work its way to the Supreme Court. And advocates are not wasting any time. While critics of affirmative action (including the Trump administration) are backing the lawsuit, a coalition of civil rights organization plans to file briefs backing Harvard today.
Harvard's brief characterizes the Students for Fair Admissions arguments as "misleading" and lacking "a shred of documentary or testimonial evidence of the alleged scheme" to discriminate against Asian applicants. The Harvard documents quoted by the plaintiffs "are cherry-picked and misleadingly presented," the brief says. Along with contesting the lawsuit's claims, the Harvard brief also provides some inside information on how applicants are considered (and typically rejected).
Edward Blum, who is leading the Students for Fair Admissions effort, said via email that his group would soon be releasing yet more Harvard documents to bolster its case, and he said that his group's lawsuit would prevail. He did not withdraw any of the statements the group has made to date."

Monday, July 9, 2018

NAPE Statement on Rescinding Guidance on the Use of Race for College Admissions

"The National Alliance for Partnerships in Equity Contests the Actions of the Trump Administration in Rescinding Guidance on the Use of Race for College Admissions.

On July 3, 2018, Attorney General Jeff Sessions announced that he is “rescinding 24 guidance documents that were unnecessary, outdated, inconsistent with existing law, or otherwise improper.” Following this announcement, the U.S. Department of Education and the U.S. Department of Justice, in a joint action, rescinded Obama Administration guidance that promotes diversity while providing protections against racial exclusion in college admissions and K-12 education. The Obama Administration guidelines specified legal recommendations for schools to utilize race as an admissions factor to increase diversity at their institutions.

A Wall Street Journal article released on the same day states that “Trump administration officials plan to argue that the documents, published in 2011 and 2016, go beyond Supreme Court precedent on the issue and mislead schools to believe that legal forms of affirmative action are simpler to achieve than what the law allows.”

Mimi Lufkin, NAPE Chief Executive Officer issued the following statement:

“July 2nd marked the 54th anniversary of the Civil Rights Act of 1964. The Administration’s untimely actions set a precedent that moves us as a nation toward a reversal of the spirit of that Act.  The Justice Department’s attacks on Affirmative Action in colleges and universities over the past year have become a relentless battle that those of us in the educational equity community cannot afford to lose. Educators recognize that equity and diversity in learning environments vastly improves both educational achievement and the human experience for EVERY student. This recent action by Sessions and Kenneth Marcus, the newly confirmed Assistant Secretary of the Office for Civil Rights at the Department of Education, to rescind guidance documents from the previous Administration is an affront to our values of inclusion. The rescinding of this guidance threatens the civil rights protections that help ensure equal access and opportunity for every student to become high-skilled, high-wage workforce contributors and in the long-term, jeopardizes the future of our nation’s ability to remain globally competitive.”

The Administration’s decision does not change federal law under Title IV and Title VI with regard to protecting students of color in public schools and universities; and the Supreme Court has twice ruled reaffirming the importance of diversity. However, rescinding the guidance fosters an ambiguous environment of fear and concern for students, families and communities while causing confusion for school administrators and state governments by eliminating effective guidance that aids in complying with current law. To add to the confusion, the Trump administration has not offered any direction to schools on how they should move forward.

NAPE joins its education and civil rights colleagues in denouncing the Administration’s actions in rescinding of this guidance.  Equity, diversity and racial inclusion are, have been and will continue to be the fiber of strength and resilience that grounds the bedrock our democracy, a foundation we must preserve."



Thursday, July 5, 2018

MEMO: Information Concerning Harvard Lawsuit

Memorandum 
July 5th, 2018

To: Shirley Wilcher, Executive Director AAAED

From: Alicia QuiƱones, Intern AAAED

RE: Information Concerning Harvard Asian-American Student Lawsuit

The following is the statement posted on the Students for Fair Admissions website concerning the lawsuits filed against Harvard University and University of North Carolina-Chapel Hill. 


“PROJECT ON FAIR REPRESENTATION ANNOUNCES LAWSUITS CHALLENGING ADMISSIONS POLICIES AT HARVARD UNIV. AND UNIV. OF NORTH CAROLINA-CHAPEL HILL

Seeks additional students recently rejected from competitive universities

(Washington, DC) Today, the Project on Fair Representation announces the filing of two lawsuits challenging the racial preference admissions policies of Harvard and the University of North Carolina-Chapel Hill.


The plaintiff in both lawsuits—Students for Fair Admissions (SFFA)— is a newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to both schools, highly qualified students who plan to apply to both schools, and their parents.

The Harvard lawsuit alleges the university is engaging in a campaign of invidious discrimination by strictly limiting the number of Asian Americans it will admit each year and by engaging in racial balancing year after year. These discriminatory policies in college admissions are expressly forbidden by the Fourteenth Amendment and federal civil rights laws.

Students for Fair Admission’s complaint highlights data and analysis that strongly suggests that white, African-American, and Hispanic applicants are given racial preferences over better-qualified Asian-Americans applying for admission to Harvard.

Additionally, the complaint demonstrates that Harvard is not in compliance with the new “strict scrutiny” standards articulated in 2013 by the U.S. Supreme Court in Fisher v. The University of Texas at Austin. The Fisher opinion unambiguously requires schools to implement race-neutral means to achieve student body diversity before turning to racial classifications and preferences.

The UNC-Chapel Hill lawsuit alleges that, like Harvard, the University is not in compliance with the new Fisher strict scrutiny requirements. Students for Fair Admissions explains in its complaint that UNC has admitted in an amicus brief it submitted to the Supreme Court in the Fisher case that the school can maintain, and actually increase, racial diversity through race-neutral means if it ends its race-based affirmative action policies. Students for Fair Admissions argues that this compels the university to end its racial classifications and preferences and adopt some combination of race-neutral policies instead.

The discrimination against Asian-Americans at Harvard and both schools’ blatant failure to comply with recent Supreme Court directives with regard to race preferences are emblematic of the behavior of the vast majority of competitive colleges throughout the country. Because of this, Students for Fair Admissions asserts in its complaints that racial classifications and preferences in college admissions are (no longer) administrable; a violation of the Fourteenth Amendment and federal civil rights laws; and must be ended as a matter of policy and law.

Edward Blum, the director of the Project on Fair Representation, said, “These two lawsuits are the first of what are expected to be several similar challenges to other competitive colleges that continue to unconstitutionally use racial preferences in admission decisions. Students for Fair Admissions encourages any student who was recently rejected from a competitive university to contact us at www.StudentsForFairAdmission.org.”

The Harvard complaint documents the school’s long, irrefutable, history of instituting admissions policies to limit the number of Jewish students beginning in the 1920’s. The “Harvard Plan” itself—and the concept of an admissions system based on a “holistic” review of applicants instead of admission based on academic accomplishment—was formulated for the specific purpose of discriminating against Jews. Harvard’s “holistic review” today is primarily a similar tool to limit the number of Asian Americans it admits each year.

Blum continued, “It is especially disconcerting that public data shows that Harvard has purposefully limited the percentage of Asian-American freshman it admits. In fact, the number of Asian-Americans Harvard admits today is lower than it was 20-years ago, even though the number of highly qualified Asian-American applicants to Harvard has nearly doubled. Harvard’s discrimination against Asian-Americans is as deeply troubling today as was the discrimination against Jewish applicants that Harvard perpetrated in the name of ‘holistic’ admissions years ago.”

Blum concluded, “The University of North Carolina at Chapel Hill has no need to continue to use racial and ethnic preferences and should end them now instead of facing years of expensive and polarizing litigation.”

Counsel for SFFA is Mr. William Consovoy and Mr. Thomas McCarthy of Consovoy McCarthy PLLC based in Arlington, Virginia.

The Project on Fair Representation (POFR) is a not-for-profit legal defense fund program that is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts. POFR provided counsel in a number of recent Supreme Court cases including, Northwest Austin Municipal Utility District No. One v. Holder; Abigail Fisher v. Univ. of Texas at Austin; and Shelby Co., Alabama v. Holder.”
-

RESPONSE FROM HARVARD

Harvard has responded to the court filings in saying that their admissions process is legal and does not participate in the “racial balancing” mentioned. The school stated that the students are misinterpreting the data shared to the public in the 2013 and that the school “does not discriminate against applicants from any group, including Asian-Americans, whose rate of admission has grown 29 percent over the last decade."[1]

Harvard stated that the study cited by the student group was, “incomplete, preliminary and based on limited inputs,” and “was not designed to evaluate whether Harvard was intentionally discriminating and reached no such conclusion.”[2]

The school also wrote that “the documentary and testimonial evidence about Harvard’s admissions process demonstrates that Harvard carefully considers every applicant individually, using the same thorough reading and committee procedures for all applicants.”[3]

Based on the court filing from 2013, “the Harvard Office of Institutional Research created four models that included different racial categories to see what hypothetical percentage of students would be admitted based on various criteria. 


When only academics were considered, Asians made up 43 percent of the admitted class, the document said. After accounting for recruited athletes and legacies, that figure dropped to 31 percent, and for extracurricular and personal ratings, 26 percent.

The actual share of admitted Asian Americans cited in the report was 19 percent, the Students for Fair Admissions court filing said.”[4]

See below admission rates based on differing criteria models at Harvard University:


If the court filings submitted by the student organization go to court, the trial could be expected to take place in October of this year. Additionally, the Justice Department is looking into the admissions process used by Harvard as it regards to race.

**UPDATE:

The Trump administration on Tuesday, July 3rd rescinded Obama-era guidance on how colleges can legally consider race and ethnicity in admissions decisions. In addition, the Department of Justice has stated that it will be backing the plaintiffs in the suit concerning Harvard admissions policies arguing that Harvard discriminates against Asian-American applicants. 

Harvard released a statement that indicated that the university had no plans to change any policy as a result of what happened Tuesday. "Harvard will continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years," the statement said. "Harvard is deeply committed to bringing together a diverse campus community where students from all walks of life have the opportunity to learn with and from each other."[6]
-

The following is a conversation with Anurima Bhargava, who led civil rights enforcement in school at the Justice Department under Obama and the publication Mother Jones about the implications of the rescission of Obama-era affirmative action guidance: 

Mother Jones: What was the original intent of the guidances that the Trump administration rescinded today?

Anurima Bhargava: They were put together to explain how schools, colleges, and universities could promote diversity and address segregation and racial isolation in ways that were consistent with the existing law. They were meant to be a tool and resource. They were not making up new law and were more of a resource for schools to use as they established student assignment plans and admissions policies. The second part of the guidances was to signal something that’s been consistent with the Supreme Court for many, many years, which is that promoting diversity and addressing segregation are important to the country, to the education of our children, and that we have a situation where kids can come together and feel like they are welcomed and comfortable and not in such few numbers that they are tokens in our schools.

MJ: Could you explain what the Trump administration’s decision today accomplishes? 

AB: The law has not changed. The Trump administration decided to take down these guidances at this moment when there haven’t been any changes in the law. We’ve seen again and again the Supreme Court come out and say that there are permissible ways for schools to be able to promote diversity and prevent racial isolations. To remove the guidances now can only be described as a political attack on efforts to bring communities together and as a policy of separation and division.

MJ: What does the administration’s decision mean for colleges and universities following the Obama-era guidance? 

AB: I don’t know what the impact will be. What I hope is that colleges and universities and schools realize that the law hasn’t changed and that this doesn’t serve as a deterrent or discouragement from taking steps that they have wanted to take. These guidances were not talking about court-ordered desegregation or something like that. They were talking about when schools and colleges and universities want to try and promote diversity amongst their student body and how they are able to do that. I hope they continue to want to pursue those important and necessary goals. For them to take down this guidance right now, at a time when we see far too many incidents of racial violence and deepening tensions, is not the way that the federal government should support colleges and universities that are trying to do this kind of work.”[7]
-

Point of Reference
The following is a letter from the Department of Education and Justice about the what documents were to be rescinded.

“The purpose of this letter is to inform you that the Department of Justice and the Department of Education are withdrawing the following documents:

     December 2, 2011 Dear Colleague Letter Regarding the Use of Race by Educational Institutions;
     2011 Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education dated December 2, 2011;
     2011 Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools dated December 2, 2011;
     September 27, 2013 Dear Colleague Letter on the Voluntary Use of Race to Achieve Diversity in Higher Education After Fisher v. University of Texas at Austin [Fisher I];
     September 27, 2013 Questions and Answers About Fisher v. University of Texas at Austin [Fisher I];
     May 6, 2014 Dear Colleague Letter on the Supreme Court Ruling in Schuette v. Coalition to Defend Affirmative Action; and
     September 30, 2016 Questions and Answers About Fisher v. University of Texas at Austin [Fisher II].

These documents purport to explain the legal framework that governs the use of race by elementary, secondary, and postsecondary schools under the Constitution, Title IV of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq., and Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq.  The documents advocate specific policies and procedures for educational institutions to adopt, analyze a number of hypotheticals, and draw conclusions about whether the actions in those hypotheticals would violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution or Title IV or Title VI of the Civil Rights Act of 1964. 

The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI.  Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law.  By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents.  

Accordingly, the Department of Education and the Department of Justice have decided to withdraw the documents.  The protections from discrimination on the basis of race guaranteed by the Constitution, Title IV, and Title VI remain in place.  The Departments are firmly committed to vigorously enforcing these protections on behalf of all students.  
This guidance does not add requirements to applicable law.  If you have questions or are interested in commenting on this letter, please contact the Department of Education atocr@ed.gov or 800-421-3481 (TDD: 800-877-8339); or the Department of Justice ateducation@usdoj.gov or 877-292-3804 (TTY: 800-514-0383). 

Sincerely,
/s/                                                                               /s/
Kenneth L. Marcus                                                   John M. Gore
Assistant Secretary for Civil Rights                           Acting Assistant Attorney General
U.S. Department of Education                                  U.S. Department of Justice”
-

SCHOLAR AND GROUP OPINIONS 

Jeannie Suk Gersen, a professor at Harvard Law School wrote a piece for the New Yorker titled, “The Uncomfortable Truth About Affirmative Action and Asian Americans” address the recent Harvard lawsuit. “This lawsuit, and much of the discussion of affirmative action that surrounds it makes a serious error in assuming that, in order to stop discrimination against Asian applicants, race-conscious affirmative action must end.”[8]

Suk Gersen states that affirmative action is “perfectly compatible with tackling the discrimination at issue. The problem is not a race-conscious holistic review; rather, it is added, sub-rosa deployment of racial balancing in a manner that keeps the number of Asians so artificially low relative to whites who are less strong on academic measures.” 

Suk Gersen closes by mentioning that for the first time, racial minorities are a majority of this year’s entering class at Harvard and the Asian enrollment is the highest ever at over 22 percent with their increased share cutting into the white student population a Harvard and not the Black or Latino population. 

18MillionRising.org is an Asian American based organization whose purpose is to unify online and offline the Asian American community and identity. They released a statement titled, “Edward Blum, We Won’t Be Used For Your Racist Agenda,” explaining that Edward Blum’s agenda to dismantle affirmative action is using the Asian-American student population at Harvard as a “political wedge against affirmative action” by “cherry-picking data” for the court filings. 

18MR stated that Blum is “intentionally exploiting the Model Minority myth by suggesting that the challenges of race can be overcome merely by hard work, but he also claims race-conscious considerations are actually hurting Asians by passing us up in favor of Blacks and Latinos. Blum claims to be protecting the interests of Asian Americans by fighting to end affirmative action – despite the fact that 76% of Asian Americans say they support the policy (affirmative action policies).”[9]

Michele S. Moses, University of Colorado; Christina Paguyo, Colorado State University, and Daryl Maeda, University of Colorado released an article discussing Harvard student lawsuit. They are among other academic scholars who agree that Asian-Americans largely benefit from affirmative action policies and their claims against such are greatly inaccurate.[10]

See link below for full article:

See also for further opinions: 
“Bias against Asian-American students is real. Affirmative action isn’t the problem,” by Stacey J. Lee and Kevin K. Kumashiro. June 27, 2018.


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[1]Chappell, Bill. NPR News. “Harvard Accused Of 'Racial Balancing': Lawsuit Says Asian-Americans Treated Unfairly,” June 15, 2018.
[2]Fuchs, Chris. NBC News.“Lawsuit accuses Harvard of discriminating against Asian-American applicants in 'personal ratings,” June 18, 2018. https://www.nbcnews.com/news/asian-america/lawsuit-accuses-harvard-discriminating-against-asian-american-applicants-personal-ratings-n884476
[3]Fuchs.
[4]Fuchs
[5]Scott Jaschik. Inside Higher Ed. Smoking Gun on Anti-Asian Bias at Harvard? June 18, 2018. https://www.insidehighered.com/admissions/article/2018/06/18/harvard-faces-new-scrutiny-over-how-it-evaluates-asian-american


[6]Jaschik, Scott. Inside Higher Ed. “Trump Administration Rescinds Guidance on Affirmative Action,” July 5, 2018. https://www.insidehighered.com/news/2018/07/05/trump-administration-rescinds-obama-guidance-race-and-admissions
[7]Rios, Edwin. Mother Jones. “What Trump’s Plan to Ignore Race in School Admissions Actually Means for Students,” July 3, 2018.  https://www.motherjones.com/politics/2018/07/what-trumps-plan-to-ignore-race-in-school-admissions-actually-means-for-students/

[8]Suk Gersen, Jeannie. The New Yorker.“The Uncomfortable Truth About Affirmative Action and Asian Americans,” August 10, 2017. https://www.newyorker.com/news/news-desk/the-uncomfortable-truth-about-affirmative-action-and-asian-americans
[9]18MR. “EDWARD BLUM: WE WON’T BE USED FOR YOUR RACIST AGENDA!” https://action.18mr.org/blockblum/
[10]Moses, Michele S., Paguyo, Christina. Maeda, Daryl. “The missing elements in the debate about affirmative action and Asian-American students,” July 16, 2018.