Harvard lawsuit represents latest test of nation’s affirmative-action policies

A high-profile lawsuit alleges Harvard University discriminates in admission decisions. Given that the elite Boston campus accepted less than 5 percent of its 42,749 applicants last year, it’s clearly discrimi- nating in who makes the cut.

The question, however, that was debated for three weeks in a federal courtroom in Boston is whether Harvard practices illegal discrimination, as alleged by Asian-Americans who maintain in a lawsuit they are bypassed in favor of less qualified students from other racial minorities.

Regardless of how the judge eventually rules in this Harvard lawsuit, appeals are expected, and the rancorous debate over affirmative action — which the Trump White House opposes — could make its way to the U.S. Supreme Court. The U.S. Department of Education began a probe in September into similar allegations of admissions bias against Asian-Americans at Yale.

The three-week Harvard trial, which concluded Friday, reflects the efforts of anti-affirmative activist Edward Blum. Blum has championed two dozen lawsuits attacking affirmative action and voting rights laws. He has lost some battles, including the 2016 Fisher v. University of Texas Supreme Court decision, which reaffirmed race-conscious

admissions, but succeeded in 2013 in gutting key parts of the Voting Rights Act.

A few years ago, Blum began to seek out Asian-American students to challenge college admissions practices that he said raised the bar for some applicants and lowered it for others, organizing them as Students for Fair Admissions.

Their contention that Harvard holds Asian-American applicants to a higher standard found an ally in the U.S. Justice Department, which submitted a 65-page statement of interest in the case that declared: “Harvard has failed to carry its demanding burden to show that its use of race does not inflict unlawful racial discrimination on Asian Americans. To the contrary, the record evidence demonstrates that Harvard’s racebased admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups— including both white applicants and applicants from other racial minority groups.”

The Justice Department and Blum contend Harvard relies on a “personal rating” of applicants that disadvantages Asian-Americans who earn lower scores. Harvard rates applicants in more than a dozen categories, including personal traits such as courage, integrity and leadership, as captured in interviews and counselor recommendations.

The trial has exposed the intricacies of Harvard admissions, the trade secrets of a process that applicants to many select colleges, including the University of Georgia and Georgia Tech, often find mysterious. With a 40-person admissions team and 200 variables under review including geography, parents’ occupations and obstacles overcome, Harvard’s path to admission is long and winding, but some applicants benefit from a head start.

For example, emails between administrators and admissions officers reveal a nudge on behalf of applicants whose families could reward Harvard with a new building or big donation. One email discussed an applicant whose family had already given the school nearly $9 million but still had an art collection that could eventually come to Cambridge. Such applicants earn a spot on a confidential “Dean’s Interest List.”

Testimony and documents also showed an edge for legacy students, athletes, and children of Harvard faculty members. These students, according to Students for Fair Admissions, are mostly white and account for about three out of 10 of the students at Harvard. Still, Harvard points out that 22.9 percent of the admitted class of 2022 was Asian-American, compared to a 6.8 percent Asian-American population overall in America.

During the trial, Har- vard Dean of the College Rakesh Khurana was pressed about the family wealth of many Harvard students. “We’re not trying to mirror the socioeconomic or income distribution of the United States,” Khurana said. “What we’re trying to do is identify talent and make it possible for them to come to a place like Harvard.”

Asian-Americans, including those attending Harvard now, are not necessarily in support of the lawsuit, arguing that diversity enriches the college classroom. The Asian American Legal Defense and Education Fund and 34 Asian American groups and higher education faculty filed a “friend of the court” brief in support of Harvard’s race-conscious model.

As Sally Chen, a Harvard senior who testified on behalf of Harvard, wrote in explanation of why she agreed to speak, “Harvard’s holistic race-conscious admissions allowed me to present myself as a whole person — beyond stereotypes — in a way that flat numbers could not.”

“Although the plaintiffs in this case have stated that this is about discrimination against Asian Americans, it is really about removing race as a positive consideration in the admissions process,” said attorney Nicole Gon Ochi of Asian Americans Advancing Justice. “That is the remedy that is being sought in this case and it will not address any discrimination against Asian Americans that might exist. There is no evidence in this case that Harvard’s consideration of race as a plus factor unduly harms Asian Americans, and in fact, there is plenty of evidence that Asian Americans benefit from the consideration of race because they can also contribute to the diversity on campus, as the students we represent testified to on Monday.”

The trial has exposed the intricacies of Harvard admissions, the trade secrets of a process that applicants to many select colleges, including the University of Georgia and Georgia Tech, often find mysterious.