Harvard goes to court Monday to fight a lawsuit claiming it illegally limits the number of Asian-Americans it accepts. The suit, grinding on since 2014, seeks to stop it from considering race and may reach the Supreme Court, where Justice Brett Kavanaugh could tip the balance against affirmative action in college admissions for decades to come.
The case, which is being heard without a jury in federal court in Boston by Judge Allison Burroughs, was filed by Students For Fair Admissions, a group led by affirmative action opponent Edward Blum. It accuses Harvard of engaging in “racial balancing.” Admission of Asian-American students, who often have perfect grades and test scores, is capped through vague and manipulable “personal” and overall ratings, SFFA contends, while other minorities are favored.
Harvard argues that race is just one factor in its calculus, an approach allowed by the Supreme Court, and that without it the school couldn’t provide the educational benefit of a diverse student body, also approved by the court.
Blum is “going back to the basics in suing Harvard,” Elise Boddie, former director of litigation for the NAACP Legal Defense & Education Fund and a professor at Rutgers Law School, said in an interview. She noted that in the 1978 Bakke decision striking down racial quotas at a University of California medical school, Justice Lewis Powell praised Harvard for using race as just one factor among many.
“It attracts a lot of attention,” Boddie said, “because if Harvard goes down, we have to worry about the chilling effect a loss will have on other colleges and universities.”
Blum declined to comment on the case.
Four-Decade Attack
The use of race in U.S. college admissions has been under attack since the court upheld affirmative action without quotas in Bakke. Now, a flurry of assaults on the liberal ideal threatens to deliver the most decisive blow in years. In addition to SFFA’s lawsuit — and a separate suit arguing that Harvard and New York universities illegally use race and gender in selecting law students for their top academic journals — the U.S. Department of Justice has joined the battle.
It filed a statement of interest in the Harvard case in August, alleging that the admissions process was “infected with racial bias” and that public funds, which the college draws, shouldn’t be used to “finance the evil of private prejudice.” The Justice Department is also probing possible bias in admissions at Harvard and Yale universities and has removed guidelines from the Obama administration that urged schools to take race into account. Under Barack Obama, the government investigated and dismissed complaints about discrimination against Asian-Americans.
It all adds up to a new, and possibly dark, day in American higher education, said David Bergeron, a senior fellow at the liberal Center for American Progress, who worked with the U.S. Department of Education for 35 years specializing in higher education.
Kavanaugh Factor
“Having Kavanaugh on the Supreme Court really does change the likelihood that some precedents will be overturned,” Bergeron said. That dangling threat will not only leave institutions and applicants “in a state of confusion” in coming years but also cast doubt on whether students already accepted under affirmative action “‘deserve’ to be there,” he said. “There’s a significant negative consequence to that.”
Of those admitted to Harvard’s new freshman class, about 12 percent are Latino, 16 percent African-American and a record-high 23 percent Asian-American, according to the Cambridge, Massachusetts, college. The plaintiffs say the Asian percentage should be at least 40 percent. Asian-Americans make up about 5.6 percent of the U.S. population.
“Harvard’s brazenness is astonishing,” SFFA said in an Oct. 1 statement to Judge Burroughs, who issued a temporary restraining order against Trump’s travel ban last year and previously worked as a federal prosecutor handling drug-trafficking and organized crime. What the college “will not admit — but what the record shows — is that race is not only an important factor, it is the dominant consideration in admitting Hispanics and African-Americans,” it said. “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 African-American.”
Ivy Coalition
The Asian American Coalition for Education, which says it represents 156 Asian-American groups, has thrown its support behind the suit. Siding with Harvard — the nation’s oldest and richest university, with an endowment of $39.2 billion through June 30 — are the seven other members of the Ivy League, along with the NAACP and the ACLU. The Ivies, in turn, have joined nine other schools, including Duke, Johns Hopkins and MIT, in asking that Supreme Court precedents allowing race as one factor — in both Grutter v. Bollinger in 2003 and Fisher v. University of Texas in 2013 and 2016 — be upheld.
Some see the case as a cynical vehicle for Blum to provoke a high court review that might end affirmative action at college altogether. Blum and his group twice took the Fisher case to the Supreme Court and lost both times, noted Boddie, of Rutgers. Now, she said, “they think with Justice Kavanaugh as the fifth vote they will overturn affirmative action.”
The lawsuit “poses a fundamental threat to opportunity for millions of young people seeking higher education,” said Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights and former head of the Justice Department’s Civil Rights Division under Obama. “The United States is becoming increasingly diverse, and universities and colleges should reflect that and have the freedom to create diverse campus communities.” She called Blum’s efforts “a mean-spirited attempt to eliminate any laws and policies that seek to address our nation’s legacy of racial discrimination.”
Others see it as a long-awaited chance to stop the abuse of race-conscious admissions.
“My hope is that eventually in this case, or some other case, the Supreme Court will reconsider its decision to leave the door ajar for universities to consider race and ethnicity in admission,” said Roger Clegg, president and general counsel for the Center for Equal Opportunity, a Falls Church, Virginia, group opposed to racial preferences. He said colleges have shown “that if you allow them to use race at all, they’re going to weigh it in a very heavy, mechanical and unfair way.”
Kindness and Grit
Harvard, which admits only about 2,000 applicants a year, says it could fill each incoming class many times over with kids with perfect numbers. For the Class of 2022, it says, it got a record 42,749 applicants, of whom more than 8,000 domestic applicants had perfect grade point averages, more than 3,400 pristine SAT math scores and more than 2,700 impeccable verbal scores.
But it’s after more than that, the school says — a varied student body of future leaders who have demonstrated values such as kindness, creativity and grit.
Thang Diep, 21, a neurobiology major from Los Angeles, is a Vietnamese-American who came to the U.S. as a refugee when he was 8 and wrote about it in his application essay. He is among eight current or former Harvard students who plan to testify for the college at the trial. If race-conscious admissions were struck down altogether, as the lawsuit asks, his experience might be excluded from consideration.
Dueling Economists
Central to the lawsuit is an internal study Harvard conducted in 2013. The plaintiffs say it shows that the college’s own researchers found evidence its application process discriminated against Asian-American applicants — and then ignored the findings. Harvard counters that the report was “incomplete” and “preliminary” and didn’t look at whether Asian applicants were discriminated against or reach any conclusions. It notes that the percentage of Asian-Americans admitted to the school has grown by nearly a third over the past decade, to 22.7 percent.
The suit forced Harvard to surrender six years of student data, more than 97,000 pages in all. The trial will feature a pair of dueling economists who analyzed the records and came to diametrically opposite conclusions.
The plaintiffs’ expert says his modeling showed bias against Asian-Americans. Harvard’s says his counterpart ignored essential factors such as personal essays and teacher recommendations. Sixteen other economists, including former Fed chair Janet Yellen and two Nobel Laureates, filed a brief in support of Harvard, arguing the analysis used by the plaintiffs was “not based on sound statistical principles.”
‘I Earned It’
Amber Ashley James, an African-American, was in the class of 2011 and is due to graduate next year with a joint MBA from Harvard Business School and J.D. from Harvard Law School. James was at a demonstration in Harvard Square on Sunday supporting the school with a sign that read “The Spot I Have, I Earned,” while those who feel Harvard discriminates against Asian-Americans gathered in Boston.
“After just a few decades of some semblance of diversity and opportunity for students of different racial, ethnic and socioeconomic backgrounds finally being accepted to this place, Blum comes in and says ‘It’s unconstitutional, take it all away,’” said James, 28. She noted that “for hundreds of years Harvard was exclusive, white and male.”
Her verdict? “Ridiculous.”
This article was provided by Bloomberg News.
