Federal Judge Allison Burroughs, who presided over the lawsuit arguing that Harvard College’s use of race in admissions discriminates against Asian-Americans, upheld the University’s admissions program as constitutional on October 1.
“Harvard’s admissions program has been designed and implemented in a manner that allows every application to be reviewed in a holistic manner consistent with the guidance set forth by the Supreme Court,” her decision reads. The plaintiff in the case “did not present a single admissions file that reflected any discriminatory animus, or even an application of an Asian American who it contended should have or would have been admitted absent an unfairly deflated personal rating.”
Stakeholders have been waiting for Burroughs’s decision since February, when the parties presented their closing arguments. The plaintiff, Students for Fair Admissions (SFFA), alleged in the case filed in 2014 that Harvard discriminates against Asian-American applicants in admissions. Part of SFFA’s case rested on Harvard’s practice of assigning applicants subjective “personal” ratings, which the group argued disadvantaged Asian-American applicants. According to Burroughs’s decision, “[T]he Court is unable to identify any individual applicant whose admissions decision was affected and finds that the disparity in the personal ratings did not burden Asian-American applicants significantly more than Harvard’s race-conscious policies burdened white applicants.”
“Today’s decision unequivocally affirms that Harvard does not discriminate on the basis of race in its admissions process, and that Harvard’s pursuit of the diverse student body central to its educational mission is lawful,” said Harvard Corporation senior fellow William Lee ’72, who served as Harvard’s lead lawyer in the case. “It represents a significant victory not merely for Harvard, but also for all schools and students, for diversity, and for the rule of law.”
“The consideration of race, alongside many other factors, helps us achieve our goal of creating a diverse student body that enriches the education of every student,” Harvard president Lawrence S. Bacow said in a message to the University community. “Everyone admitted to Harvard College has something unique to offer our community, and today we reaffirm the importance of diversity—and everything it represents to the world.”
Edward Blum, SFFA’s founder and president, said in a press release that the group plans to appeal the decision. “Students for Fair Admissions is disappointed that the court has upheld Harvard’s discriminatory admissions policies,” he wrote. “We believe that the documents, emails, data analysis and depositions SFFA presented at trial compellingly revealed Harvard’s systematic discrimination against Asian-American applicants.” Blum, an opponent of affirmative action, previously initiated Fisher v. University of Texas. In that case, ultimately decided in 2016, the Supreme Court upheld that university’s affirmative-action program. Many legal analysts expect that the makeup of the current Supreme Court would mean that the use of race in college admissions could be struck down or significantly curtailed if SFFA v. Harvard were heard before the court.
Burroughs drew extensively on the Fisher decision in her ruling in SFFA v. Harvard. “Ultimately, the Court finds that Harvard has met its burden of showing that its admissions process complies with the principles articulated by the Supreme Court in Fisher II,” she wrote. In the Fisher case, the Supreme Court specified that college affirmative-action programs had to be tailored narrowly and show that they accomplish a specific goal, and also that colleges must prove that race-based admissions policies are the only way to meet diversity goals.
Burroughs ruled on four separate counts at stake in the case:
- that Harvard intentionally discriminates against Asian-American applicants;
- that Harvard engages in illegal racial balancing, or a quota;
- that Harvard places too much emphasis on race so that it is a determinative factor in admissions; and
- that Harvard hasn’t adequately explored whether there are race-neutral means to reach its diversity goals.
On each of these counts, she ruled in the University’s favor. “[T]here is no evidence of any racial animus whatsoever or intentional discrimination on the part of Harvard,” she wrote.
Although Harvard looks at the projected racial makeup of each class in making admissions decisions, to ensure that it reaches diversity goals, Burroughs wrote, it does not impose quotas or quota-like “target levels” for different racial groups. Having minimum goals for minority enrollment, she added, is not tantamount to a quota: “Every applicant competes for every seat.”
On the third count, alleging that Harvard puts undue emphasis on race, she wrote that colleges that use race as more than just a “plus” factor tend to use either a quota system or “assign some specified value to applicants’ racial identity.” Harvard does neither: it uses race on an individualized, context-dependent basis for each applicant, and not as the “defining feature” of any application.
And on the fourth count, Burroughs sided with Harvard’s position that no feasible race-neutral alternatives would achieve its diversity goals: options like eliminating early-action admissions, admitting more transfer students, increasing outreach to potential applicants, and offering more financial aid, she wrote, “would likely have no meaningful impact on racial diversity.” One proposal, considered in this case and more broadly in discourse about college admissions, would be to give preference to low-income students instead of considering race. But this would result in a significant decline in African-American enrollment, she wrote.
Burroughs’s decision acknowledged that there are problems with Harvard’s admissions system. Asian-American applicants may have a more difficult time getting into Harvard, she wrote—and part of that may have to do with admissions officers’ implicit bias. “Overall, the disparity between white and Asian American applicants’ personal ratings has not been fully and satisfactorily explained,” she wrote.
“The disparity in personal ratings between Asian American and other minority groups,” she continued, “is considerably larger than between Asian American and white applicants and suggests that at least some admissions officers might have subconsciously provided tips in the personal rating, particularly to African American and Hispanic applicants, to create an alignment between the profile ratings and the race-conscious overall ratings that they were assigning. It is also possible, although unsupported by any direct evidence before the Court, that part of the statistical disparity resulted from admissions officers’ implicit biases that disadvantaged Asian American applicants.”
While implicit bias is a possible explanation for the evidence she evaluated, Burroughs concluded, it hasn’t been shown for certain. (This is, of course, inherent in the concept of implicit bias: it is subconscious, hard to untangle from other factors, and rarely possible to prove through direct evidence.) “Notwithstanding the fact that Harvard’s admissions program survives strict scrutiny, it is not perfect,” she wrote.
“The process would likely benefit from conducting implicit bias trainings for admissions officers, maintaining clear guidelines on the use of race in the admissions process, which were developed during this litigation, and monitoring and making admissions officers aware of any significant race-related statistical disparities in the rating process,” she continued. “That being said, the Court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better. There is always the specter of perfect, but strict scrutiny does not require it.”
Since Harvard and SFFA made their opening arguments before Burroughs last October, public discussion of the massive trove of admissions statistics released in the case has been fierce. In September, a much circulated paper co-authored by economist Peter Arcidiacono, one of the experts who provided evidence for SFFA, found that 43 percent of white students admitted to Harvard are so-called ALDCs: recruited athletes, legacies, children of faculty, or those on the dean’s interest list (many of whom are children or relatives of donors to the University). Among admitted minority students, that number was less than 16 percent. “Removing preferences for athletes and legacies would significantly alter the racial distribution of admitted students, with the share of white admits falling and all other groups rising or remaining unchanged,” the study concluded.
Burroughs’s decision accepted Harvard’s argument for why it needs to give preference to ALDC candidates. Eliminating athlete preferences, she wrote, would make Harvard “far less competitive in Ivy League intercollegiate sports,” while eliminating tips for faculty children, legacies, and students connected to top donors would “adversely affect Harvard’s ability to attract top quality faculty and staff and achieve the desired benefits from relationships with its alumni and other individuals who have made significant contributions to Harvard.” For now, those preferences remain intact.
The full court decision can be read at: bit.ly/2nI4ktz.
