Obscuring Asian Penalty with Illusions of Black Bonus

Abstract

Do white students enjoy an unfair advantage as compared to Asian Americans in admissions to certain universities? This Article explains the proper legal comparison under settled civil rights law for making this determination based on the number of white and Asian American applicants and admits for a given admissions cycle. This Article also raises questions regarding the accuracy of blaming affirmative action favoring African Americans — a Black bonus — for racial discrimination against Asian Americans — an Asian penalty. It does so by examining charges of Asian penalty made by amici in Fisher v. University of Texas at Austin and the similar charges made in the complaints in lawsuits challenging racial affirmative action by Harvard University and the University of North Carolina at Chapel Hill. The Article exposes two mathematical fallacies as well as the limitations of an oft-cited 2009 book that have been relied upon regularly to bolster the notion that admissions bonuses for African Americans and Latinos cause universities to operate racially discriminatory anti-Asian American admissions ceilings. The Article illuminates how efforts to link affirmative action and Asian penalty omit a key inquiry for identifying anti-Asian American discrimination — disparate impact analysis comparing Asian American selection rates to white selection rates.

Keywords: Asian Penalty, White Advantage, Affirmative Action, Black Bonus, SAT, Test Scores, College Admissions, Discrimination, Race, Mean Test Score Fallacy, Harvard, UNC, Fisher v. Texas, Reverse Discrimination