Litigating Admissions

In the course of a lawsuit initiated in 2014 alleging that Harvard College discriminates against Asian-American applicants, the plaintiff and the University outlined their arguments in court filings on June 15. The filings provide an expansive look into Harvard’s normally shrouded admissions process—and expose sharply contrasting views about the propriety of a private institution’s standards for composing its student body.

The plaintiff, Students for Fair Admissions (SFFA), presented its analysis of more than 90,000 admissions documents that the U.S. District Court in Boston compelled Harvard to share earlier this year, as well as information from depositions of admissions staff members and senior University officers. After statistical analysis, SFFA claimed in its filing that the “subjective” factors Harvard considers in evaluating applicants—personal qualities and an “overall” rating assigned to each student—disadvantage Asian-American applicants.

Harvard assigns applicants scores in five broad categories: academic, athletic, and extracurricular achievement, plus “personal qualities” and an “overall” rating, which is given once the reader of a file “steps back” and considers “all the factors” of an admission file. The personal rating includes assessments of such traits as whether a student has a “positive personality,” is “widely respected,” or has good “human qualities” (“likeability,” “courage,” and “grit”). Asian Americans, by SFFA’s analysis, consistently receive the lowest score of any racial group on the “personal” rating, despite rating higher on average than any other racial group in the academic and extracurricular categories.

SFFA also filed as exhibits a series of studies dating back to 2013 conducted by Harvard’s Office of Institutional Research (OIR) that concluded the College’s practices produce “negative effects” for Asian-American applicants. The reports—which were shared with some of Harvard’s top administrators but otherwise not disclosed to the public or discussed with other members of Harvard’s staff—concluded, based on data over a 10-year period, that

  • Asian-Americans would comprise 43 percent of the annual incoming class (more than double their current share) if Harvard relied on an admissions model that considered only academic factors; and
  • “Asian high achievers have lower rates of admission.” (Applicants who scored a “1” or “2” on their academic rating—the highest scores on a 6-point scale—were admitted 12 percent of the time, versus 18 percent of the time for non-Asian applicants.)

A draft of another OIR report found that although “low income students clearly receive a ‘tip’ in the admissions process, our model also shows that the tip for [legacy, athletes, etc.] is larger. On the flip side, we see a negative effect for Asian applicants.” (The rate of admission for legacy applicants for the classes of 2014 to 2019 is 33 percent: five times that for non-legacy students, the filings show.) In its filing, the University maintained the OIR reports were “incomplete, preliminary, and based on limited inputs.”

In its own filings, Harvard was largely dismissive of SFFA’s claims, arguing that the plaintiff had cherry-picked variables from the six years of admissions data Harvard provided to the group during the legal discovery process. David Card, Class of 1950 professor of economics at the University of California, Berkeley, as Harvard’s expert witness, wrote that SFFA’s report “reveals a significant misunderstanding of Harvard’s admissions process by focusing so much of [its] analysis on academic achievement” and accounted for other aspects of the “multi-dimensional evaluation Harvard employs” in “only a crude and limited way.” He noted that SFFA’s analysis omitted legacy and recruited-athlete admissions and other metrics Harvard considers (such as the rigor of an applicant’s high school, socioeconomic circumstances, and parental occupation). Card said his own analysis “shows that the purported ‘penalty against Asian Americans’ identified by [SFFA] does not actually exist.”

The SFFA lawsuit, Harvard’s lawyers wrote, is but “the latest salvo by ideological opponents of the consideration of race in university admissions,” drawing attention to the fact that Edward Blum—who chairs SFFA—has organized other challenges to race-conscious admissions, most recently Fisher v. University of Texas at Austin (analyzed here). In that case, finally decided in 2016, the Supreme Court ruled against the plaintiff, a white woman, who alleged that she was rejected from the school based on her race.

While the ruling itself was narrow in scope, the Court did mandate that college affirmative-action programs must be narrowly tailored to accomplish a specific goal, and universities must prove that race-neutral alternatives to their policies are not feasible. Given the history of litigation over the use of race in admissions, Harvard’s prominent role in defending affirmative action to enroll diverse classes, and the pending change in the composition of the Supreme Court following the retirement of Justice Anthony M. Kennedy, LL.B. ’61 (he was the swing vote in Fisher), Blum’s pursuit of the SFFA litigation is the next high-profile suit in which the state of race-conscious admissions practices might be challenged.

Harvard has argued that a number of race-neutral alternatives proposed by another of SFFA’s experts—Century Foundation senior fellow Richard Kahlenberg ’85, J.D. ’89, who calls for prioritizing economic background in admissions (see “Harvard’s Class Gap,” May-June 2017, page 35)—are either infeasible or would not achieve the institution’s goals, in some cases leading to a significant decline in the population of African-American and Hispanic undergraduates. Among Kahlenberg’s proposals were reducing or eliminating preferences for legacies, children of donors, and relatives of faculty and staff; increasing preferences for socioeconomic diversity in admissions; and eliminating the early-action admissions option.

Julie Reuben, Warren professor of the history of American education, said the case represents a “serious threat” to the future of affirmative action, but cautioned that concerns about the ability of universities to consider race when making admissions decisions should not prevent them from assessing their practices to ensure they are not discriminatory. “[F]rom what I understand about this behavior and how most admissions work, these types of personality measures have been disadvantageous for Asian Americans,” she said. “And that’s an important thing to acknowledge, and that’s an important thing to address.”

Natasha Warikoo, an associate professor of education who has written extensively on diversity in higher education, said she worries that a conversation about discrimination against Asian Americans in admissions is being conflated with a conversation about the benefits of affirmative action. She sees race-conscious admissions as a lever to obtain more diverse classrooms and to address historical legacies of oppression. “There are very good reasons for why we would want to give underrepresented minorities a leg up in college admissions,” she explained. “In a sort of legal framework, it fosters a diverse learning environment. If people are really going to be educated, they have to have exposure to different perspectives, so you need a quorum of underrepresented minorities on campus.” College admissions, she said, is fundamentally an “unfair” process that reflects the realities of inequality in the country, and race-conscious admissions policies are “one small mechanism” to address racial inequality. “It is very hard,” Warikoo added, “to come up with something race-neutral that addresses race.”

The SFFA case is scheduled to go to trial in October. The University, signifying the importance it assigns to the issues, accompanied its June 15 filings with a website summarizing its side of the case and providing supporting materials: For more complete reports, see the news account here and further analysis here.

Brandon J. Dixon ’19, this magazine’s 2018 Daniel Steiner Undergraduate Editorial Fellow, is a history and literature concentrator and former reporter on labor and other topics for The Harvard Crimson. The summer fellowship honors the memory of former University vice president and general counsel Daniel Steiner ’54, LL.B. ’58.

Read more articles by Brandon J. Dixon

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