This week, after more than four years of pretrial litigation and sifting through 160,000 documents, Students for Fair Admission will get its day in a Massachusetts federal district court on allegations that Harvard University discriminates against Asian-American applicants. The trial is expected to last for at least three weeks. Based on the evidence that SFA presented in pretrial motions, Harvard—whether it wins or loses in court—is in for a long, embarrassing slog.
The case is the latest in the federal courts’ tortured consideration of affirmative-action policies in higher education. (Harvard, as a private university, is not subject to constitutional requirements that apply to public universities, but because it accepts federal funding, it is subject to Title VI, the civil rights law that replicates much of the constitutional structure.) The law governing affirmative-action practices is a complete mess. Racial classifications in college admissions, the Supreme Court has said, must be “narrowly tailored” to achieve “compelling” educational interests. A school’s interest in a racially diverse student body is seen as a compelling interest, but schools can’t simply institute racial quotas. Rather, they must first consider whether there is any non-discriminatory means to achieve diversity. If none can be found, schools can use race as a “plus factor” in order to achieve a “critical mass” of minority students. And the schools must engage in a “holistic” review of applicants’ files, taking race into account without unduly focusing on it.
“Holistic review” sounds healthy, like something you pick up at the farmer’s market. But the Supreme Court never defined the operative terms—“plus factor,” “critical mass,” “holistic”—leaving it to admission offices to determine whether their practices comport with legal requirements. The structure is a blatant invitation to gamesmanship, creating incentives to paper over the use of racial quotas and hide intent to discriminate within “holistic review.” Taking the Court’s cue, colleges have been mouthing bromides about “crafting a diverse student body” and “reviewing the whole file” ever since.
Whether it wins or loses, SFA has done a public service by highlighting just how ugly this process can be. In June, the group filed a 45-page summary-judgment motion, accompanied by a 97-page statement of facts, outlining its evidence about what “holistic” means in practice at Harvard. The school assigns applicants a rating of 1 to 6, with some files afforded plus or minus ratings to indicate strength or weakness relative to others in that band. On the objective portions of this scheme—grades and SAT scores—Asian-Americans outperform every ethnic group handily. They score nearly as strongly in less objective but still reasonably measurable areas such as extracurricular activities and teacher recommendations.
Where they fall far behind other groups, however, is in the entirely subjective “personal” rating. Harvard admission officers, SFA found, “assign Asian Americans the lowest score of any racial group on the personal rating—a ‘subjective’ assessment of such traits as whether the student has a ‘positive personality’ and ‘others like to be around him or her,’ has ‘character traits’ such as ‘likability . . . helpfulness, courage, [and] kindness,’ is an ‘attractive person to be with,’ is ‘widely respected,’ is a ‘good person,’ and has good ‘human qualities.’” What’s striking about this disparity is that Harvard gives two personal ratings—one assigned by the admissions office, and one assigned by alumni interviewers who actually meet the applicants. With the alumni, Asian-Americans score as high as any other ethnic group, and much higher than blacks or Hispanics. But among campus-bound officers, who review a paper record, Asian-Americans score far lower on personal ratings than any other racial group. This factor, SFA alleges, depresses the overall ratings of Asian-American applicants and substantially reduces their chances at admission: An Asian-American applicant with a 25 percent chance of admission would have a 35 percent chance if he were white, a 75 percent chance if he were Hispanic, and a 95 percent chance if he were black. SFA’s analysis concluded that “[r]ace plays such a decisive role in the admissions chances of Hispanics and African Americans that the percentage of Asian Americans admitted to Harvard would increase by 40% if all racial preferences and penalties were eliminated.”
Harvard fought successfully to withhold a broad sample of individual student files that would have permitted more in-depth review of applicant ratings, but SFA was able to access some of these files, as well as internal documents on which reviewers entered comments about individual applicants. SFA’s motion and accompanying statement of facts include huge chunks redacted for privacy, but based on the context, it’s clear that many of these redactions quote communications between admissions office reviewers about individual files. The trial will likely shed harsh light on the internal racial sausage-making.
The publicly available material is often stunning in its cynicism, and makes clear that Harvard admission officers employ stereotypes of Asian-Americans as conformist, obedient, and indistinguishable—or, as one applicant was described, as “busy and bright,” but “need[ing] to fight it out with many similar to [him or her].” The memo also describes Harvard’s initial identification of prospective students through the “lop list,” a measure by which the university “fine-tunes” the racial composition of its class once early acceptances start pouring in. One striking piece of evidence is the annual meeting of admissions officers of 17 elite and Ivy League colleges, at which they sit in a room and, one-by-one, read the percentage of admitted students from each of seven racial categories and then discuss (without taking notes). Harvard officials describe this process as “educational”; to the eye untrained in the finer points of holistic review, it looks an awful lot like collusion.
The result of this multistep process is a striking consistency in the percentage of Asian-Americans in Harvard’s entering class every year—ranging between 18 percent and 20 percent. Based on academic qualifications alone, it should be 40 percent or more. No apparent natural explanation exists for this consistency; in an echo of Harvard’s shameful history of depressing the admission of Jewish students in the mid-twentieth century, it appears to be blatant racial engineering to prevent “too many” Asian-Americans from being admitted.
Lost in the abstract discussion of numbers and trends is the fact that the victimized students are real people, often from disadvantaged backgrounds, with their own legitimate aspirations built on years of sterling academic achievement. The most poignant section of a motion bristling with statistics and regression analysis is an excerpt of deposition testimony from a college admissions counselor at Stuyvesant High School in New York City. Admissions to Stuyvesant are race-blind and based on test scores—at least for now, though Mayor Bill de Blasio is advocating for a “holistic” admissions review there as well. Seventy percent of Stuyvesant students are Asian-American, and Harvard admits at least ten Stuyvesant students per year, though less than half of that group is Asian-American, generally. When the director of college counseling at Stuyvesant was shown SFA’s analysis in her deposition, she broke down in tears:
Q. Have you ever seen statistics like this before?
A. No.
Q. What’s your reaction to them?
A. My first reaction is that, mathematically, it looks like there’s discrimination.
Q. Do you think that something like—do you think that discrepancies that big could—Sorry—
A. (Witness crying.)
Q. I’m sorry this is upsetting you. Would you like to take a break?
A. (Witness shakes her head no.)
Q. You want to keep going? You want to tell me why this is upsetting to you?
A. Because these numbers make it seem like there’s discrimination, and I love these kids, and I know how hard they work. And these just look like numbers to all of you guys, but I see their faces.
SFA’s goal at trial will be to get courts and the public to see the faces of the Asian-American students who are the losers in an ugly system of racial balancing practiced by Harvard and other elite colleges. Affirmative-action proponents recognize the profound challenge that this case poses to the tottering edifice of the policy: the district court has been inundated by amicus briefs extolling the virtues of diversity and holistic review. Expect to see this case coming to the Supreme Court in a future term.
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