In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the lawsuit alleging that Harvard discriminates against Asian-American applicants, both sides have moved for summary judgment. Students for Fair Admissions (SFFA) should prevail. Harvard has plainly sought ways to limit the percentage of Asian students it admits.
As a New York Times report put it, Harvard’s admissions committee regularly de-selects Asian-American students because it judges them “lower than others on traits like ‘positive personality,’ likeability, courage, kindness, and being ‘widely respected.’” Moreover, Harvard’s admissions committee often reaches these judgments without speaking to or interviewing the applicants. Apparently, it is enough to know that a student is Asian to infer that he isn’t likeable or courageous.
Those percentages are the tip of the iceberg. The rest of that berg is the way Asian-American students are allegedly frozen out by having to meet much higher standards than members of any other ethnic group in order to gain admission. The “Plaintiff’s Statement of Undisputed Material Facts” includes dozens of pages documenting bias against Asian applicants.
Absent the special handling that the admissions committee provides Asian-American applicants, the typical Harvard class would be 43 percent Asian American. We know that because Harvard did its own study in 2013 showing what would happen if only academic qualifications were considered. If extracurricular and personal ratings were added, the Harvard class would be 26 percent Asian American.
Harvard’s admissions committee took one look at the 2013 report from its own statisticians in Harvard’s Office of Institutional Research (OIR) and apparently buried it. SFFA obtained a copy of the OIR report during the discovery phase of its lawsuit and made the document public.
One might think the facts already made public would be enough to persuade Harvard to settle this lawsuit and agree to end its discrimination against Asian-American students. But Harvard cannot find wrongdoing on this matter. That OIR report from 2013? “Preliminary.” (Preliminary to what?)
Harvard’s dean of admissions and financial aid, Dean William Fitzsimmons, seems to pride himself on how Harvard has avoided bias in admissions. The word Fitzsimmons employs when he testifies or speaks about the SFFA lawsuit is “vigilant,” e.g. Harvard “would always be vigilant about any suggestion of discrimination against any person.”
Indeed, vigilant in keeping awkward and embarrassing information about apparent discrimination out of sight and out of the hands of people who might mend their practices.
Harvard’s defense in this case so far looks like the invisible wall conjured by a mime. If the mime bumps his nose on it and tries to push it with both hands, we might join in the illusion, though the stage is truly bare.
Harvard’s own motion for summary judgment touches all the bases you might expect. SFFA “lacks standing” because it is "not a true membership organization.” Harvard’s race-conscious admissions policies are “narrowly tailored to achieve a compelling interest.” That’s Harvard asserting that it lives within the guidelines set down by the U.S. Supreme Court in Grutter (2003) and the two Fisher decisions (2013, 2016).
But Harvard’s policies are as narrowly tailored as a tent dress, and the “compelling interest” apparently consists of preferring students from some minority groups over others. The rationalizations for racial and ethnic preferences are drearily familiar, but the one that really worries Harvard is that “eliminating race-conscious admissions would cause a substantial, unacceptable decline in minority enrollment.” That’s a back-handed acknowledgement that Harvard’s current policies use racial identification to boost the admittance numbers of black and Hispanic students at lower standards. Nonetheless, and with no concern for consistency, Harvard argued that it “carefully considers every applicant individually, using the same thorough reading and committee procedures for all applicants.”
Same procedures, but different standards depending on race?
Harvard brushes aside its own 2013 OIR report as “not designed to evaluate whether Harvard was intentionally discriminating,” and anyway the report was “incomplete, preliminary, and based on limited inputs.” That explains why no one saw a need to complete it, finalize it, or expand its “inputs.”
The last part of Harvard’s defense is a slam at the expert employed by SFFA, Dr. Peter Arcidiacono, professor of economics at Duke University. Harvard says Arcidiacono’s analysis is “so unmoored from the reality of Harvard’s admissions process” that the Court should not allow it at all. This, I suspect, is where Harvard is placing most of its chips. If it can discredit Arcidiacono, its invisible wall of excuses and evasions just may hold. Harvard’s problem is that Arcidiacono’s analysis is cogent and powerful.
The Students for Fair Admissions’ challenge to Harvard was a long time coming. Discrimination against Asian students has been rampant among elite colleges and universities for some 40 years. When I interviewed Asian students about it for my 2012 book, “Diversity: The Invention of a Concept”, they almost all said that they were aware of the problem but were committed to meeting the challenge through personal achievement.
When I asked why Asians didn’t organize themselves against such discrimination, a student at Colby College explained, “That would be shameful.” Bad news for Harvard and other colleges that discriminate: That sense that it would be shameful to mount a collective response is gone. Increasingly the Asian community is fed up with a system rigged against Asian students. The SFFA suit is just the beginning.