Harvard Ruling Affirmed by College

Last week, the college welcomed the district court’s ruling in a highly-anticipated case, which decided that Harvard does not discriminate against Asian-American applicants in its admissions process and that race-conscious admissions is constitutional. The decision, announced on Oct. 1, comes nearly five years after the group Students for Fair Admissions (SFFA) filed a complaint against Harvard in 2014.

SFFA alleged that Harvard violated Title VI of the Civil Rights Act of 1964 on four counts: by intentionally discriminating against Asian Americans, by using racial balancing, by using race as a determining factor when considering who to admit and by using race-conscious admissions without first exhausting race-neutral alternatives. Judge Allison Burroughs’ ruling cleared the university of all four claims, citing the importance of racial diversity in her 130-page decision.

The original lawsuit pointed to data which shows, according to SFFA, that Asian-American applicants are consistently ranked lower on “personality,” hurting their chances of admission, despite academic and extracurricular achievements. Early on in the case, Amherst submitted a friend-of-the-court brief supporting Harvard.

“Amherst welcomes and applauds the court’s decision, which affirms the importance and constitutionality of race-conscious admissions as part of a holistic review of applicants to our colleges and universities,” President Biddy Martin wrote in a statement on the college website. She emphasized that “our society depends for its well being on the identification and development of talent wherever it exists. It exists in every community and group.” Martin is a member of the Harvard Corporation.

The judge was expected to follow existing precedent, said Professor of American Studies Franklin Odo, who has conducted extensive research on the case. “The fact that previous cases have time and time again approved the use of race as a minor factor in a holistic process — this probably led her to the conclusion that she reached,” he said.

The decision is complicated by the conflation of the need for race-conscious admissions with discrimination against Asian-American applicants. Some of the news headlines that followed Burroughs’ decision automatically concluded that the judge’s ruling equaled a lack of discrimination against Asian Americans in admissions. These headlines tend to oversimplify the situation at hand, said Odo.

“[The judge] did imply that there was implicit bias against Asian American applicants … regarding the personality [and] personal elements of the admissions process,” Odo said. “I think there was implicit, but not so much explicit discrimination happening. So there’s no smoking gun, but it’s hard to believe that there wasn’t some bias involved.”

While she allowed for the possibility of implicit biases, Burroughs ruled that Asian-American applicants’ lower personal rating scores “are not the result of intentional discrimination.” She did, however, admit that Harvard’s admissions process was “not perfect,” suggesting the need for its admissions officers to undergo implicit bias training.

In an interview with WBUR-FM, Harvard professor and author of “The Diversity Bargain,” a book covering the issue of affirmative action, Natasha K. Warikoo discussed Blum’s “clever[ness]” in conflating the “two very different issues” of Asian American discrimination with affirmative action.

“[Blum] has been trying to dismantle affirmative action for many years,” she said. “For this case, he decided to corral a group of Asian-Americans to try to attack affirmative action. And so this question of ‘is there discrimination against Asian Americans’ … we could imagine a scenario in which … there was found to be Asian American discrimination and yet, we still think that affirmative action, race-based considerations for underrepresentation, makes a lot of sense.”

The decision, which was hailed as a win for race-conscious admissions, left the Asian-American community, both on campus and nationwide, feeling divided.

Sabrina Lin ’21 and Karina Thanawala ’21, who studied the case in Odo’s research colloquium last semester, said they felt both relieved and apprehensive about the decision.

“I think it’s definitely a victory for race-based affirmative action … but I also think it will be the first decision in a very long line of further court decisions and appeals,” Lin said.

Thanawala pointed to an important distinction in the case. “It’s not that I disagree with SFFA’s [claims of discrimination],” she said. “I just disagree with them jumping from ‘Harvard might be discriminating against Asian Americans’ to ‘This is why we should remove race-conscious admissions.’”

“I think that this case hides what actually needs to be shifted, which, in my opinion, are legacy and athlete admissions,” she added.

Eric Kim ’19, another member of the colloquium, researched the philosophical and moral implications of the Harvard lawsuit and found that SFFA supporters believe the admissions process should be as “fair or meritocratic as possible.”

“What [being meritocratic] means for them might be having the best academic performance, or the best resume,” he said. “But in reality, Harvard has no obligation to merely admit those with the best academic performances … the most amazing applicants doesn’t mean just academically amazing, but amazing in a holistic sense. Not just what they’ve done, but also who they are.”

That doesn’t mean, however, that bias doesn’t exist in the admissions process, said Warikoo.

“Another way in which all students of color are being excluded and being dinged,” she said, “is these legacies, a boost for children of alumni, a boost for people whose parents are donating to the university, a boost for athletic recruits who are majority white, a boost for faculty children — all of these categories are categories in which white students are gaining a leg up over all students of color … These are already privileged students who are getting even more advantages.”

Last month, the National Bureau of Economic Research published a study which found that 43 percent of white students admitted to Harvard were recruited athletes, legacy students, children of faculty and staff or on the dean’s list — applicants whose parents or relatives have donated to Harvard (ALDCs). For black, Latinx and Asian American students, this number drops to less than 16 percent. The study also found that roughly 75 percent of the white students admitted from those four categories “would have been rejected if they had been treated as white non-ALDCs.”

According to journalist Dan Brown, over the 15 years prior to 2004, Amherst had admitted 50 percent of alumni children as opposed to 20 percent of all applications. Legacy students are further granted the opportunity to meet and interact with the dean of admissions during Dean’s Day. Based on previous admissions reports, about seven to 13 percent of admitted students every year are expected to be legacies. The disparities carry over to athletics, too: athletes at the college are disproportionately more white and less low-income compared to the larger student body.

Odo noted that one probable effect of this trial is increased attention to how the current college admissions process perpetuates existing power hierarchies. He is hopeful that the lawsuit will raise more awareness to systems which favor the already privileged. “I think the elite institutions are going to do some reflecting on this, but the administrators want to be able to do this on their own terms; they don’t want the courts to be telling them what to do,” Odo said. “My guess is that the [processes laid bare in this lawsuit] are enough of a warning so that at least some elite institutions will be trimming the number of white ALDC acceptances.”

According to Dean of Admissions and Financial Aid Matt McGann, admissions officers at Amherst undergo implicit bias training; he did not specify how often these trainings occur. “I don’t know that you can ever eliminate every person’s unconscious bias,” McGann said. “We don’t just dive headlong into the review of the applications, but instead we take significant time leading up to the review to talk about things like unconscious and implicit bias.”

SFFA announced last Friday that they are appealing Burroughs’ decision. Blum stated in the court filing that “Students for Fair Admissions looks forward to making our appeal to the U.S. First Circuit Court of Appeals and, if necessary, to the U.S. Supreme Court.” According to McGann, the college will likely file an amicus brief in support of Harvard as it did in Fisher v. University of Texas, an earlier challenge to race-conscious admissions.