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Federal Judge Rules Harvard's Admissions Policies Do Not Discriminate Against Asian American Applicants

By Margot E. Shang

UPDATED: Oct. 2, 2019 at 5:04 p.m.

Harvard College’s race-conscious admissions policies do not illegally discriminate against Asian American applicants, federal judge Allison D. Burroughs ruled Tuesday.

The ruling brings an end to this stage of the lawsuit filed against the University by anti-affirmative action group Students for Fair Admissions in 2014. SFFA alleged that the College's admissions policies discriminate against Asian American applicants by holding them to higher standards. Burroughs, however, found that Harvard’s use of race in its admissions process is legal.

“Ensuring diversity at Harvard relies, in part, on race conscious admissions. Harvard’s admission program passes constitutional muster,” Burroughs wrote in her decision.

In addition to arguing that Harvard’s policies are discriminatory, SFFA contended that the College had artificially capped the number of students from certain racial groups and had failed to seriously consider alternative race-blind strategies for admitting a diverse class — practices which the Supreme Court previously deemed illegal.

Burroughs determined the University was not liable on all four counts of alleged wrongdoing: intentionally discriminating against Asian Americans, engaging in racial balancing, using race as a determinative factor in admissions decisions, and inadequately exploring race-neutral alternatives to achieve diversity.

The decision came roughly a year after the start of a three-week trial at the U.S. District Courthouse in Boston that drew national media attention. The trial saw testimony from top administrators, current students, and expert witnesses.

SFFA President Edward J. Blum said in a press release Tuesday that his organization plans to appeal the ruling to the First Circuit Court of Appeals.

“Students for Fair Admissions is disappointed that the court has upheld Harvard’s discriminatory admissions policies,” Blum said in the press release. “We believe that the documents, emails, data analysis and depositions SFFA presented at trial compellingly revealed Harvard’s systematic discrimination against Asian-American applicants.”

In her legal opinion, Burroughs disagreed with the allegations of discrimination, finding “no evidence of any discriminatory animus or conscious prejudice” on the part of Harvard’s admissions officers. In particular, Burroughs wrote that admissions officers’ testimonies were “consistent, unambiguous, and convincing.”

“Those are pretty powerful words, and pretty tough to get over on appeal,” said Peter McDonough, the general counsel and vice president of the American Council on Education.

University President Lawrence S. Bacow wrote in an email to Harvard affiliates Tuesday that the College’s consideration of race in admissions allows the school to create a diverse student body that in turn “enriches the education of every student.”

“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,” he wrote.

Much of Burroughs’s judgment lauded the benefits of diversity in higher education. She agreed with Harvard’s claims that only race-conscious admissions policies could achieve a favorable level of diversity at the College.

“Harvard has demonstrated that no workable and available race-neutral alternatives would allow it to achieve a diverse student body while still maintaining its standards for academic excellence,” she wrote.

Despite siding with Harvard, Burroughs wrote that Harvard’s policies could be improved. She suggested providing admissions officers implicit bias training, maintaining clear guidelines on the use of race in the admissions process, and monitoring any race-related statistical disparities.

In her ruling, Burroughs wrote that Harvard’s policies, though not perfect, meet “constitutional muster” for acceptable affirmative action policies as determined by the Supreme Court in landmark rulings.

The Court has ruled that race-conscious admissions policies must pass the “strict scrutiny” test, which includes the requirements that the use of race serve a “compelling governmental interest” — like the educational benefits that stem from diversity — and be “narrowly tailored” to satisfy that interest.

Burroughs wrote that she believes the College employs a strong example of a race-conscious admissions policy.

“The Court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better,” she wrote. “There is always the specter of perfection, but strict scrutiny does not require it and a few identified imperfections, after years of litigating and sifting through applications and metrics, do not alone require a finding that Harvard’s admissions program is not narrowly tailored.”

Burroughs’s opinion — which some experts called particularly thorough — will likely be closely examined in an appeals process that could extend for years. Harvard’s victory in this stage of the case, however, was definitive.

“My first read of the decision is that it's a slam dunk for Harvard,” McDonough said. “Harvard won and Harvard won going away.”

Though Harvard prevailed in the district court case, the College’s admissions process is still subject to a separate investigation by the Department of Justice Civil Rights Division. The DOJ opened its investigation at least as early as 2017 and filed a statement of interest in the SFFA lawsuit in August 2018 alleging that Harvard practices “unlawful racial discrimination” against Asian American applicants.

In the months leading up to the October 2018 trial, thousands of pages of the Harvard admissions office’s internal communications, administrators’ depositions, experts’ statistical analyses, and even a few students’ application scorecards became public. These filings shed new light on how the College’s admissions process works behind the scenes.

Among the findings was the revelation that Harvard’s own internal research office concluded in 2013 that the College’s race-conscious policy yields “negative effects” for Asian Americans. The University’s Office for Institutional Research found that Asian American applicants consistently receive lower personal ratings — numerical scores based on abstract qualities like “humor” and “grit” — from admissions officers.

Burroughs found that the personal ratings for Asian American applicants are “on average, slightly weaker” than the ratings assigned to other applicants. She concluded the disparity had not been completely explained in the trial.

But she found that part of the discrepancy appeared to come from teacher and guidance counselor recommendations. She also speculated that some admissions officers may subconsciously assign higher personal ratings to African American and Hispanic applicants in order to increase their overall ratings.

“Even if there is an unwarranted disparity in the personal ratings, the 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,” the judgment reads.

“Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process, but this is justified by the compelling interest in diversity and all the benefits that flow from a diverse college population,” she wrote.

The trial brought a number of other previously secret admissions practices to light, including the apparent preference Harvard gives to applicants related to major donors. Evidence in the case also noted a statistical advantage for applicants who are recruited athletes, children of alumni, members of the specially selected “Dean’s List” and “Director’s List,” and children of Harvard employees — a group of applicants collectively referred to as “ALDCs.”

Burroughs upheld the legality of providing a preference — or a “tip” — for these students in the admissions process.

“Eliminating tips for legacies, applicants on the dean’s and director’s interest lists, and children of faculty or staff would also come at considerable costs, and would adversely affect Harvard’s ability to attract top quality faculty and staff and to achieve desired benefits from relationships with its alumni and other individuals who have made significant contributions to Harvard,” Burroughs wrote.

Beyond the inner workings of the College’s admissions process, much of the evidence in the case rested on the use of statistical models to assess the outcome of the admissions policies.

Harvard and SFFA each hired economics professors — David E. Card of the University of California, Berkeley and Peter S. Arcidiacono of Duke University, respectively — as expert witnesses to analyze the six years of admissions data that Harvard made available as part of the trial. They came to opposite conclusions on the question of whether there is statistical evidence that Harvard discriminates on the basis of race.

Though they were working with the same data set, the experts’ models featured key differences; while Card included all applicants in his analysis, Arcidiacono removed ALDCs. Arcidiacono also removed the personal rating from his model since he interpreted it as biased against Asian American students. Card did a year-by-year analysis, while Arcidiacono pooled the data over all six years.

Burroughs wrote that she found both models “econometrically defensible” and preferred different aspects of each model. In formulating her opinion, she said she primarily relied on Card’s model and considered results both with and without the personal rating.

Still, Burroughs noted that an “overly data driven” admissions process was not the solution to the legal questions at issue in the case. She concluded her opinion by arguing that greater diversity on college campuses will create a more equitable society.

“The rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance and understanding that will ultimately make race conscious admissions obsolete,” she wrote.

— Staff writer Sanjana L. Narayanan contributed to reporting.

—Staff writer Camille G. Caldera can be reached at Follow her on Twitter @camille_caldera.

—Staff writer Delano R. Franklin can be reached at Follow him on Twitter @delanofranklin_.

—Staff writer Samuel W. Zwickel can be reached at Follow him on Twitter @samuel_zwickel.

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