The Stakes for the Harvard Trial Are Higher Now That It’s Over
The Ivy has spent the past three weeks being grilled about whether it discriminates in its admissions process. But the legal battle over affirmative action will likely rage until the Supreme Court weighs in.
BOSTON—There was a fog over the John Joseph Moakley Courthouse in mid-October. Harvard was headed to court to defend its admissions policies; a coalition of Asian American students, cobbled together by the conservative legal strategist Edward Blum, was there to challenge them. The group, Students for Fair Admissions, alleged that Harvard had discriminated against them. But there was a broader question: Could the case be the first nail in the coffin of the use of race in college admissions?
As the trial wore on, the surge of people in the entrance to Judge Allison Burroughs’s courtroom turned to a slow trickle. Passionate arguments for diversity gave way to murky debates over the validity of regression models. John Hughes, a lawyer for SFFA, tried to clear the muck in his closing arguments. “All of the claims are important,” he told Burroughs. But SFFA wanted to focus on one: that Asian American students face intentional discrimination in Harvard’s admissions process. SFFA’s argument hinged on the personal rating, one of the metrics the university uses to measure applicants, which the group argues is how Harvard adds a plus factor to students of certain racial backgrounds. The personal rating, Harvard says, is generated using a bevy of information, including teacher and counselor recommendations as well as alumni interviews. “You see the substantial preferences for African Americans and Hispanics in the personal score,” Hughes told the court.
The main question is: If race is a plus for some students, is it also a minus for others? The plaintiffs argue that there is a racial penalty for Asian students. And they allege that implicit bias on the part of Harvard’s admissions officers when reviewing applications is the reason for that supposed minus. “Evidence of bias and stereotyping can suffice to show intentional discrimination,” Hughes said.
Over the course of the trial, SFFA ran both a legal and a public-relations campaign. They leaned on several thorny issues that often frustrate the public: Harvard’s legacy-admissions process, preferences for children of donors, and the advantage that recruited athletes get. But none of that mattered on Friday. The personal ratings, and the alleged use of race in them, was the focus.
In its closing statement, Harvard offered a defense of its process, and a defense of Supreme Court precedent. “SFFA began its opening statement by contending that ‘the wolf of racial bias is at Harvard's door,’”Bill Lee, the lead attorney for Harvard, said. “That wolf is not intentional discrimination,” he continued. “That wolf comes in the form of SFFA ... It is those who would turn back the clock,” and eliminate the “not only sanctioned” but “lauded” consideration of race in individual student applications. “The goal of SFFA,” Lee proclaimed, “is to eliminate all race in admissions.”
The university has recently added instructions to its Reading Procedures—which teach admissions officers how to review applications—on how race should be used in the process, which is to say, not at all in the personal rating. SFFA charges that the change is evidence that Harvard recognized built-in discrimination against Asian American applicants. Still, the outlines of Harvard’s defense were perhaps laid bare most clearly by Drew Gilpin Faust, the institution’s former president. “There is no place for discrimination of any kind at Harvard,” she said.
The Supreme Court has four decades of precedent on the use of race in admissions. In 1978, in the case of Allan Bakke, a white student who alleged that UC Davis discriminated against him by denying his admission to the medical school, the court agreed that race could be considered as one of many factors in the admissions process. Diversity, Justice Lewis Powell argued, constituted a compelling government interest, and diverse student bodies improved higher education for all students. But this trial strikes at the heart of Justice Powell’s decision. How much diversity is necessary, and is the use of race necessary to achieve that goal?
Right now, only one person can answer that question: Judge Burroughs, who will issue judgement on the case. (This was a bench trial, meaning there was no jury.) She is under no obligation to issue an immediate decision. But when her decision does come down, it could have major implications for the colleges that use race when considering applicants. Yes, there are four decades of precedent, but the Supreme Court looks very different than it did in the time of Bakke, or even Fisher v. the University of Texas, another major affirmative-action case from 2016. And the majority of the court now appears more skeptical of policies based on race.
The vast majority of colleges do not need to use race in admissions, because they tend to be more open-enrollment institutions. It is primarily the most selective institutions, which carry with them name recognition and powerful alumni networks, that use the practice to diversify their campuses. And several states have banned the practice of considering race in admissions—such as Michigan, where the state’s flagship university has never recovered its black enrollment since the change.
There are a lot of arguments explaining how and why Asian Americans could be discriminated against in the admissions process. There could be discrimination in who receives recruiting mailers. There could be bias in admissions officers’ interpretation of the kinds of occupations Asian American students hope to have. And there could be personality bias in the personal rating. It’s unclear which, if any, of those arguments will stick and potentially force changes to Harvard’s admissions process. If Harvard loses the case, it may not appeal the decision—but if Students for Fair Admissions does, it is almost certain to.
It could be months before we have a decision in this case, and it could be years before it reaches the Supreme Court. It may never appear before the high court, but the high-powered, Supreme Court–tested lawyers in the courtroom arguing the case seem convinced that it will. And if it goes the distance, the future of race-conscious admissions could be very much at risk.