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John Harvard's Journal

Debating Diversity

May-June 2019

Allan Bakke’s admissions suit began four decades-plus of protests and litigation.

Photographs from Bettmann/Getty Images


Allan Bakke’s admissions suit began four decades-plus of protests and litigation.

Photographs from Bettmann/Getty Images

The Students for Fair Admissions (SFFA) lawsuit alleging Harvard College bias against Asian-American applicants is now in the hands of federal judge Allison D. Burroughs in Boston; final arguments were heard on February 13. In the meantime, SFFA’s suit against the University of North Carolina, challenging its use of race as a factor in admissions and alleging discrimination against white applicants, is also proceeding (UNC makes its case at admissionslawsuit.unc.edu). Amid these current challenges to affirmative action in admissions—continuing litigation that now extends back more than four decades—Princeton University Press has released a twentieth-anniversary edition of the landmark The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions. It stands as a comprehensive assessment of the data by the two preeminent research-university presidents emeriti perhaps most associated with the policy then: Princeton’s William G. Bowen and Harvard’s Derek C. Bok. Separately, President Lawrence S. Bacow, who has been immersed in these issues himself, advanced a new formulation of the issue aimed at casting it in a different, more productive light.

The closing arguments. In their pre-Valentine’s Day reprise of their arguments before Burroughs, counsel for SFFA and for Harvard presented anew their statistical arguments—the core facts—in the case (see “Admissions on Trial,” January-February, page 15, for a review of the trial). Burroughs highlighted an issue in each side’s presentation that might weigh on her deliberations.

In SFFA’s case, that is the “no-victim problem”: relying entirely on the statistical data, without presenting testimony from an Asian-American applicant who was rejected by Harvard and claimed harm from its admissions policies. In all prior cases on this subject (Bakke, Grutter, Fisher), there has been an individual plaintiff suing to right a perceived, deliberate harm.

In Harvard’s, it is the “personal-rating problem”: that SFFA shows a pattern of lower personal ratings assigned to Asian-American applicants than to whites, blacks, or Hispanics with seemingly similar academic qualifications. The University has maintained that SFFA’s finding is a statistical artifice, erroneously derived from its misinterpretation of the applicant pool. Also in question is whether such a skew in assessments of personal qualities reflects unconscious bias or deliberate intent—and if the former, its legal and practical weight.

Burroughs, who heard the case directly, will now craft her opinion and issue her ruling—a process expected to take several months.

The bigger picture. The SFFA case turns in part on the judge’s interpretation of the data and assessment of how Harvard implements its admissions policies. It also involves fine points of constitutional law and the antidiscrimination language of the Civil Rights Act of 1964 (which applies to institutions, like the University, which receive federal funding). Her ruling, and subsequent appeals, may thus appear highly technical, turning on what rules for the use of race in admissions are permissible (SFFA hopes there are none), and their application in practice.

From the public perspective, the issues may appear in much starker terms. Hence the timeliness of reissuing The Shape of the River. When Bowen and Bok collaborated, they acknowledged that both brought to their research on “race-sensitive admissions…a history of having worked hard, over more than three decades, to enroll and educate more diverse student bodies” at their institutions and were, accordingly, “strongly identified with what we regard as responsible efforts to improve educational opportunities for well-qualified minority students.” They wrote as it became likely that the U.S. Supreme Court would hear further challenges to the admissions processes it upheld in the 1978 Bakke decision. And indeed, Grutter (2003) and Fisher (2013, 2016) ensued, to be followed by SFFA’s current challenges to the use of race as a factor in holistic admissions processes.

In his review for Harvard Magazine’s centennial edition (“Affirmative Admissions,” November-December 1998, page 27), Daniel Steiner, who had served as vice president and general counsel in the Bok administration, found that The Shape of the River made two basic claims for “supporting race consciousness” in selective institutions’ review of applicants:

First, such a policy helps prepare qualified minority students for the many opportunities they will have to contribute to a society that is still trying to solve its racial problems within a population that will soon be one-third black and Hispanic. Second, the policy provides a racially diverse environment that can help prepare all students to live and work in our increasingly multiracial society.

Steiner cited two shortcomings in the book. He wished for more human texture, from interviews for example, to augment the data. And he called for further evidence—along the lines of President Neil L. Rudenstine’s argument, in “Diversity and Learning,” his President’s Report, 1993-1995—that student diversity “contribute[s] powerfully to the process of learning.” Steiner nonetheless concluded that Bowen and Bok provided considerable support for their claims that “the policy is achieving these objectives.”

In his afterword to the new edition, Bok finds the book vindicated. He recalls a 1998 finding that still resonates: “From almost every point of view…minority students had been helped, not harmed, by their admission to selective colleges,” rebutting a canard that deploying a “plus factor” would subject minorities to withering competition from better prepared, more able classmates. And research since then has showed, with a nod to Rudenstine’s theme, that “The interaction of white and minority undergraduates turns out to do much more than create greater understanding and reduce racial bias. A diverse student body also appears to help undergraduates make progress toward a remarkably broad array of other educational goals,” such as critical thinking, civic engagement, and empathy. Such attributes extend far beyond the benefits the Supreme Court knew about when it sanctioned race-sensitive admissions in Bakke.

Given the nation’s prevalent residential segregation by race today, Bok notes, “many students attending selective colleges will be experiencing their first opportunities to live in a racially diverse environment.” That reality underscores efforts at assembling undergraduate cohorts that “are richly diverse, not only racially but in other respects as well,” and then working to be sure those students interact and thrive in inclusive campus communities.

Although diversity in admissions is a core value within university communities, it is "never a winner in electoral politics."

The 2019 edition begins with a productive and thought-provoking foreword by Nicholas Lemann ’76, who brings to the project two pertinent books (The Promised Land: The Great Black Migration and How It Changed America, and The Big Test: The Secret History of the American Meritocracy), and experience as a dean (see “The Press Professor,” September-October 2005, page 78).

He places The Shape of the River in the context of its times, in the mid to late 1990s, when further legal and political challenges were pending. That had to be profoundly troubling to Bowen, Bok, and many of their peers because, as he puts it, “If you work in a university, you’ll know that the value of diversity in admissions—meaning, foremost, racial diversity—is a core value of the community,” even as affirmative action is “never a winner in electoral politics.”

(This point is not even close. A Pew Research Center report released in late February found that 73 percent of Americans opposed considering race or ethnicity in admissions—and although the share of respondents varied, strong majorities of white, black, Hispanic, and Asian respondents, and of Republicans and Democrats, agreed with this position. Majorities favored relying on high-school grades and standardized test scores as the major criteria for admissions; majorities opposed considering athletic ability, first-generation or legacy status, or gender in making admissions decisions.)

Universities found their path narrow and tricky, Lemann writes, as they navigated the law laid down by Bakke; their desire to increase enrollment of underrepresented black students; and the dictates of the academic, meritocratic admissions hurdles represented by the universal adoption of SATs and similar metrics (see The Big Test).

Integrating elite schools, and the leadership cohort whom they educate, “has been a success,” he finds. “It would be a mistake, though, to assume that affirmative action is now safe.” Lemann notes the current litigation, recent Department of Justice actions opposing affirmative action in admissions, and the populist politics of the present moment. More enduringly, “Applicants and their families see an admissions slot as a golden ticket that universities should be duty-bound to offer to those who deserve it most. Universities see admissions as an exercise in institutional curation, requiring the subtle balancing of subjective cultural, political, and economic factors.” Even if they end up enrolling at another elite school, for students rejected from their first choice, he continues, “that doesn’t mean it’s possible to achieve comity between applicants and admissions offices. It isn’t. Many people are going to wind up feeling wronged.”

That is a formula for continued disputes over admissions—particularly given that “the value of racial diversity is assumed” on elite campuses, where the principal question is how to achieve more and more effective (inclusive) diversity. From other perspectives—in litigation, initiative campaigns—“another set of questions emerges. Why should it be permissible to consider race in the operation of institutions, even as a positive factor? Why should a black applicant from an economically privileged background get a place that might have gone to a poor white applicant?”

Such questions, Lemann warns, “will surely reappear.” Given the persistent effects of centuries of racial discrimination in the United States, and selective universities’ commitment to lessening those effects on their campuses and in the wider society, “no one should make the mistake of believing that the battles over affirmative action have ended.” That is true no matter what Judge Burroughs rules, or the ultimate disposition of SFFA’s Harvard and UNC cases: if current admissions practices are prohibited, universities will assuredly pursue alternatives, even as they maintain that such workarounds are inferior and socially counterproductive.

Reframing the question. President Bacow has left no doubt about his commitment to Harvard’s use of race as a plus factor in holistic admissions reviews: he attended the closing arguments on February 13, lending his personal and presidential support to the University’s case.

As Lemann has noted, opponents of affirmative action, and disappointed applicants, like to cite students’ quantitative, seemingly meritocratic qualifications: grades, test scores. If universities are academic enterprises, shouldn’t objective, academic criteria govern admissions? Take the students with the highest GPAs and SATs and declare victory.

Universities, of course, point out that they are broad intellectual communities. They seek to enroll not report cards, but undergraduates who might study diverse fields ranging from literature or foreign languages to microeconomics or bioengineering—and whose activities encompass athletics, artistic performance, public service, and more. As Bacow has pointed, out, it would be a dull place if everyone at the College concentrated in one thing. (In fact, if that one thing were, say, computer science, a liberal-arts institution would become a sort of trade school.) More technically, admissions officers sometimes point out that scores on standardized tests have very limited predictive value about a high-school student’s ultimate performance in college.

During the winter, he advanced another formulation, perhaps with practical appeal for the broader society. This February, for example, at an American Enterprise Institute-Brookings Institution higher-education forum, he asked audience members how many had ever hired anyone. Hands flew up. And then he asked how many had done so solely on the basis of metrics like past grades and test scores, without checking an applicant’s references or work product.

For a society deeply divided about the propriety of vetting applicants along a spectrum of diverse criteria, it was a vivid illustration of the daily use, and clear worth, of holistic evaluations. Might it even point toward a way out of conflicts over high-stakes university admissions that have, for half a century, supported a good chunk of the country’s legal talent?

Perhaps—but other issues might well arise: in February, New America, a think tank, responding to several Democratic senators’ request for ideas on how to narrow gaps in access to higher education, suggested, among other ideas, “ending federal financial aid for schools that use legacy admissions,” one of Harvard’s practices publicized during the course of the SFFA trial. Without noting that such schools are among those that offer need-blind admissions, New America defined its target as “those highly-resourced and highly-selective institutions that engage in legacy admissions and other preferential admissions treatments that overwhelming favor wealthy and white families, including early decision programs.”

The tickets remain golden, more so than ever (see application data for the class of 2023)—and so the selective colleges should fully expect their policies for distributing them to remain hotly contested. 

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