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Daily Archives: November 12, 2020
Harvard does not discriminate against Asian American applicants, a federal appeals court ruled Thursday in a decision that offers relief to other colleges that consider race in admissions but also sets the stage for a potential review by an increasingly conservative U.S. Supreme Court.
The decision came from two judges on the 1st U.S. Circuit Court of Appeals in Boston who rejected claims from an anti-affirmative action group that accused the Ivy League university of imposing a “racial penalty” on Asian Americans. The judges upheld a previous ruling clearing Harvard of discrimination when choosing students.
It delivers a blow to the suit’s plaintiff, Students for Fair Admissions, a nonprofit that aims to eliminate the use of race in college admissions. In a statement, the group’s president, Edward Blum, said he was disappointed but that “our hope is not lost.”
“This lawsuit is now on track to go up to the U.S. Supreme Court, where we will ask the justices to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities,” Blum said.
Both sides have been preparing for a possible review by the Supreme Court, and some legal scholars say the issue is ripe to be revisited.
Race’s role in admissions
Filed in 2014, the lawsuit has revived a national debate about race’s role in college admissions. In multiple decisions spanning decades, the U.S. Supreme Court has ruled that colleges can consider race as a limited factor in order to promote campus diversity. But the practice faces mounting challenges in the courts, including three suits from Students for Fair Admissions.
Many elite colleges consider applicants’ race and give an edge to some underrepresented students to promote diversity on campus. The Trump administration has opposed the practice and backed the lawsuit against Harvard. In October, the Justice Department filed a similar suit accusing Yale University of discriminating against Asian American and white applicants.
In Thursday’s decision, however, the judges ruled that Harvard’s admissions process passes legal muster and aligns with requirements that the Supreme Court laid out in previous cases.
“The issue before us is whether Harvard’s limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent. There was no error,” the judges wrote.
Blum, a legal strategist, has spent years working to rid racial considerations from college admissions. Before the Harvard case, he orchestrated an unsuccessful fight challenging the use of race at the University of Texas. In that case, a white student said she was rejected by the university because she was white.
Several Asian American groups filed legal briefs supporting Harvard, while some others filed briefs backing the suit and alleging discrimination in Ivy League admissions.
The suit alleges that Harvard’s admissions officers use a subjective “personal rating” to discriminate against Asian Americans who apply to the school. Using six years of admissions data, the group found that Asian American applicants were given the highest scores in an academic category but received the lowest scores on the personal rating.
The group’s analysis found that Harvard accepted Asian Americans at lower rates than any other racial group, while giving preference to Black and Hispanic students with lower grades. The lawsuit also alleged that Harvard works to keep a consistent racial breakdown among new students, which the organization says amounts to illegal “racial balancing.”
Statistically insignificant effect
Harvard denies any discrimination and says it considers applicants’ race only in the narrow way approved by the U.S. Supreme Court. In close calls between students, some underrepresented students may get a “tip” in their favor, school officials have said, but students’ race is never counted against them.
After a three-week trial that cast new light on Harvard’s secretive selection process, a federal judge ruled that other factors could explain why Asian Americans are admitted at lower rates than other students. In her 2019 ruling, District Judge Allison D. Burroughs said Harvard’s admissions process is “not perfect” but concluded that there was “no evidence of any racial animus whatsoever.”
A three-judge panel of the appeals court heard arguments in September, but one of the judges, Juan Torruella, died in October before the case was decided. The ruling notes that Torruella heard oral arguments but did not participate in issuing the decision.
The judges agreed with a district court finding that Harvard’s personal rating is not influenced by race. Although the rating may be correlated with race, the judges wrote, the link is more likely to be caused by outside factors including students’ personal essays or letters of recommendation.
Ultimately, the judges wrote, Asian American identity has a statistically insignificant effect on admissions probability, and they concluded that Harvard does not place outsized emphasis on race.
“Harvard has demonstrated that it values all types of diversity, not just racial diversity,” the judges wrote. “Harvard’s use of race in admissions is contextual and it does not consider race exclusively.”
The decision received praise from the American Council on Education, an association of university presidents, which called it a “clear win” for Harvard and other universities.
Some legal scholars, however, believe that the current makeup of the Supreme Court may be more likely to place tighter limits around the use of race in admissions or to forbid the practice entirely.
The three Supreme Court justices appointed to the court by President Donald Trump have pushed the nation’s highest court more conservative than when it last ruled in favor of the consideration of race in college admissions in 2016.
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Immigration rules for international students at U.S. colleges and universities have undergone multiple changes during the Trump administration. In his transition plan, President-elect Joe Biden proposes changing some of them to loosen visa restrictions.
Biden, projected as winner of the November 3 presidential election, does not specifically refer to undergraduate foreign students in his “Plan for Securing Our Values as a Nation of Immigrants,” at JoeBiden.com.
But he says he will increase the number of visas for “permanent, employment-based immigration — and promote mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment.”
Foreign students identify barriers to permanent employment opportunities in the United States as a reason some do not pick America as an education destination, according to the Institute for International Education (IIE).
U.S. colleges and universities enrolled more than 1 million international students last year, but after decades of increase, enrollment has stalled in the past two years, IIE says.
Issuance of the F-1, or student visa, has decreased over the past four years, according to State Department data. In fiscal 2016, 502,214 F-1 visas were issued. In 2017, the number dropped to 421,008. In 2019, 388,839 F-1 visas were issued.
Student visas are issued by the State Department and administered by the Department of Homeland Security.
“Biden believes that foreign graduates of a U.S. doctoral program should be given a green card with their degree and that losing these highly trained workers to foreign economies is a disservice to our own economic competitiveness,” the president-elect’s website says.
Most international students come to the U.S. on F-1 visas. After graduation, some apply for the Optional Practical Training (OPT) program, which allows students to work in their major field of study for up to 12 months. Students with degrees in science, technology, engineering or mathematics (STEM) can extend their OPT for up to 24 months.
Students who want to remain in the U.S. and gain work experience, especially those in STEM fields, seek H-1B visas after OPT.
More than 30% of international students come from China and 20% from India. Those students typically pursue STEM degrees, according to IIE.
President Donald Trump made cases of theft of intellectual property by foreign students who worked for U.S. companies or federal agencies the foundation of his curbs on student immigration. The administration also cited espionage among international students and guest workers to justify limiting their access to the U.S.
International students contributed $45 billion to the U.S. economy and supported 458,290 jobs in the 2018-19 academic year, according to NAFSA: Association of International Educators.
Here is a history of student visa changes attempted and implemented under the Trump administration:
September 2020: The Department of Homeland Security (DHS) proposed a rule limiting student visas to a fixed four-year term. To remain longer, international students would have to apply for an extension.
Also, students from a country with a visa overstay rate of 10% or a country on the U.S. State Department’s State Sponsor of Terrorism list would be limited to two years.
DHS accepted public feedback until October 26, and the rule remains under consideration.
July 2020: U.S. Immigration and Customs Enforcement (ICE) announced a modification that would compel international students enrolled in online-only courses at U.S. universities and colleges to be on campus during a pandemic or risk deportation.
The modification was rescinded after Harvard University and the Massachusetts Institute of Technology sued ICE with signatures of support from officials at more than 200 U.S. universities.
June 2020: The Trump administration issued an order suspending H-1B, J and other temporary work visas. The ban affected applicants and lasts until the end of this year.
May 2020: On May 29, Trump issued an executive order banning Chinese graduate students on an F or J visa and Chinese researchers from entering the U.S.
J visas holders are allowed to participate in work-and-study exchange visitor programs in the U.S.
The White House issued numerous statements saying China has engaged in acquiring U.S. technology and intellectual property “in part to bolster the modernization and capability of its military” and that some “Chinese postgraduate students and postdoctorate researchers operate as nontraditional collectors of intellectual property.” The order did not apply to Chinese undergraduate students or green card holders.
China has sent the largest number of international students to the U.S. for 10 consecutive years: 369,548 students in undergraduate, graduate, nondegree and OPT programs out of 1,095,299 in 2019, according to the Institute for International Education.
February 2020: The Trump administration issued a rule requiring international students to seek approval for staying during each stage of their studies in the U.S. The rule established a “maximum period of authorized stay” to reduce overstay rates and to lessen “confusion over how long they may lawfully remain in the United States.”
June 2019: International students created petitions or wrote letters citing long processing times for federal work authorization and asked their universities for assistance. Some students lost internships and money spent on housing and flights.
May 2019: DHS announced increases in fees charged to international students, exchange visitors and other schools.
For F and M international students — M visas allow internationals to participate in nonacademic or vocational studies — the I-901 SEVIS fee increased from $200 to $350. For J exchange visitors who are allowed to participate in work-and-study exchange programs, the full I-901 SEVIS fee increased from $180 to $220.
For Student and Exchange Visitor Program-certified schools — those that host F and M visa holders — the certification petition fee increased from $1,700 to $3,000.
May 2018: USCIS issued a memorandum changing how it calculates “unlawful presence” for nonimmigrants on F, J and M visas and their dependents. Graduates who overstay their visas could face up to a 10-year ban from the country under the policy.
The change is intended to “reduce the number of overstays” and “improve how USCIS implements the unlawful presence ground of inadmissibility,” USCIS stated.
USCIS published a revised policy memorandum after receiving feedback from the public.
January 2017: On January 27, Trump signed an executive order banning foreign nationals from seven predominantly Muslim countries from entering the U.S.
This impacted immigrant and nonimmigrant visa holders from Iran, Syria, Sudan, Somalia, Libya and Yemen, including students. The list has since been amended and now applies to 13 countries.
The New York Times reported that an estimated 17,000 students in the United States were impacted by the ban, most of them from universities in the Northeast and California.