Both Sides at Harvard Trial Agree on One Thing: The ‘Wolf of Racial Bias’ Is at the Door

Justin Ide, Harvard U.

On the 15th day of the proceedings, a crowd poured into the John Joseph Moakley Courthouse. Eager spectators took an elevator to the fifth floor, walked down a hallway, and pushed through the creaky wooden doors of Courtroom 17. By 9:15 a.m., the last seat was taken. The long trial would soon end.

Harvard University. Students for Fair Admissions. In the lawsuit over Harvard’s race-conscious admissions policy, both parties are, in their own way, powerful. Harvard operates in a secretive realm of wealth and influence. SFFA’s lawsuit yanked off the shroud. The organization, which alleges that Harvard discriminates against Asian-American applicants, forced the university to reveal the inner workings of its admissions process. But what did all the evidence add up to?

One Friday in November wasn’t going to settle the age-old fight over race-conscious admissions programs. But if nothing else, the last day of the three-week trial affirmed that for all the cut-and-dried numbers (test scores, grade-point averages) that influence an applicant’s chances, many aspects of who they are just aren’t quantifiable. Assessing those intangible qualities requires the use of judgment. Depending on your view, that’s either the welcome humanity of a holistic admissions process like Harvard’s — or its most troubling imperfection.

In his closing argument, John M. Hughes, a lawyer for SFFA, repeated the group’s main argument: There’s a statistically significant “Asian-American penalty” at Harvard, where admissions officers rate each applicant’s personal qualities (as well as their academic achievement, extracurricular activities, and athletic ability). Asian-American students, on average, got lower personal scores than white applicants did, the evidence revealed.

Hughes displayed a slide showing that black and Hispanic students had received higher personal scores than did Asian-American applicants with similar academic qualifications. “We think this is evidence,” he said, “that race is being used in the personal score.”

If true, that would be a no-no. Harvard officials recently testified that though there were no written guidelines on the use of race in their evaluations, an applicant’s race did not influence those personal ratings.

But then, in late October, SFFA introduced an intriguing document into evidence. It was a copy of Harvard’s new guidelines for reading applications. Admissions officers may consider an applicant’s race, the document said, when assigning an overall rating, which happens early in the evaluation process: “The consideration of race or ethnicity may be considered only as one factor among many.” The word “only” is boldfaced and underlined. The new guidelines also stated that admissions officers should not consider an applicant’s race or ethnicity when assigning the personal ratings.

Hughes saw a smoking gun. He described the new guidelines as “a corrective step to combat the bias and stereotypes that creeped into Harvard’s process.” He pulled that thread a little more: “To Harvard’s credit, they actually finally did something about it.”

Harvard on Trial

Detailed background on the lawsuit over the university’s race-conscious admissions policy, the case’s implications for selective colleges, and coverage of the trial as it unfolded, in a federal court in Boston.

• Harvard Doesn’t Discriminate Against Asian American Applicants, U.S. Appeals Court Rules
• 3 Takeaways From the Appeal of the Harvard Admissions Lawsuit
• A Judge Advised Harvard to Give Its Admissions Officers Training to Stop Bias. Will That Help?

SFFA had contended all along that William R. Fitzsimmons, Harvard’s dean of admissions, had reviewed institutional research suggesting that the university’s admissions process disadvantaged Asian-Americans. “Dean Fitzsimmons understood what was happening here,” Hughes said. And then he repeated the allegation that the long-serving dean, known widely for his commitment to expanding access to Harvard, had seen troubling information about a subgroup of applicants and then had chosen to sit on his hands.

When Hughes finished, the courtroom fell silent. His calm yet blistering remarks reminded everyone: Harvard may or may not win the case, but it has taken a public-relations lashing.

A Blank Slide

All along, the trial had seemed like two cases woven together. Though SFFA’s lawyers said diversity wasn’t on trial, Harvard’s lawyers argued at every turn as if it most certainly was. The plaintiff focused on the question of racial discrimination against Asian-American applicants; the defendant framed the lawsuit as an all-out attack on the use of race in admissions everywhere.

In his closing, William F. Lee, a lawyer for Harvard, said he agreed with SFFA about one thing. On the first day of the trial, a lawyer for the plaintiff had said that the “wolf of racial bias” had come to Harvard’s door.

But the wolf, Lee said, was SFFA: “Those who would reduce, dramatically, the number of African-American and Hispanic students on our college campuses today,” he said. “The goal of SFFA is to eliminate all consideration of race.” If the university weren’t able to consider race, one estimate had shown, the number of black and Hispanic students would plummet.

As Lee spoke, Edward J. Blum, SFFA’s founder, sat expressionless near the back of the courtroom. Hours later, he would tell reporters that “common wisdom” said the case would eventually go to the U.S. Supreme Court. He would seem pleased by that possibility.

Blum, a longtime critic of affirmative action, once found a white plaintiff named Abigail Fisher who agreed to sue the University of Texas at Austin, which had denied her admission, over its considerations of applicants’ race. Yet in the case against Harvard, those who were allegedly wronged by Harvard’s admissions process were essentially faceless. Not one of those applicants testified. None of their applications were entered into evidence.

Lee mentioned that fact in the courtroom, adding a theatrical touch. First, he showed a slide with photographs of all the current and former Harvard students who had testified for the university four days earlier.

“The next slide,” he said, “shows the fact witnesses representing the plaintiffs.”

That slide was blank.

Lee also defended Fitzsimmons. The dean testified, he said, that his office had been vigilant to ensure that the admissions process was fair. He cited a published quote from one of the plaintiff’s witnesses, who once described Fitzsimmons as “a leader in higher education who has worked doggedly to open the doors of higher education.”

“This is the person they’re now attacking,” Lee said.

Were the new guidelines for admissions officers evidence that Harvard had recognized that its procedures were flawed? No, Lee said. They were merely a written codification of existing practices.

Seth P. Waxman, another lawyer for Harvard, reaffirmed that Harvard’s admissions process weighs qualities that can’t be measured. He said that statistics alone can’t prove causation. He picked apart the conclusions of the plaintiff’s statistical expert, who he said had manipulated his findings to “find the result the plaintiff was looking for.”

Waxman reminded the court that Asian-American students had higher scores than did white applicants in two of Harvard’s ratings, lower scores in two others. And he cited data suggesting that race had had a positive effect for Asian-American applicants who were female, as well as those from California.

“That is a bizarre outcome,” he said, “for an admissions office trying to discriminate against Asian-Americans.”

‘In the History Books’

The trial left a slew of questions in its wake. Perhaps the most intriguing one concerns the “tip” that an applicant’s race can provide.

Last week Harvard’s expert witness, David Card, an economist at the University of California at Berkeley, testified that race can be a plus factor only for those applicants who are highly competitive in several dimensions of Harvard’s evaluations. Yet the plaintiff contended that if race is a plus for one student, it’s a penalty for another.

Wrong, Lee countered. That rendering, he said, “assumes that the student who received it was not qualified. None of these boosts is imposing a penalty on someone else.”

Yet at colleges with many more applicants than seats, even the highest-achieving students face long odds. If race tends to benefit some groups more than others, it’s fair to ask, isn’t race disadvantaging others?

In a forceful rebuttal, Adam K. Mortara, a lawyer for SFFA, said that Harvard wasn’t telling the “whole truth” about the use of race in the personal rating. And then he returned to the image of the wolf. “Someday, this will be written about in the history books, and those books will say that Harvard let the wolf of discrimination through the door,” he said. “We hope those books will say this court slammed the door shut.”

In the trial’s final moments, Judge Allison D. Burroughs of the Federal District Court praised the quality of lawyering on both sides. She seemed to feel the weight and complexity of the case that she alone would decide. “The issues raised in this case are incredibly important, to the parties in this case and also to the world,” she said. “I hope our final work product is worthy of the effort put into it.”

That much-anticipated outcome of the trial won’t come anytime soon, though. Judge Burroughs isn’t expected to issue a ruling in the case for months.

After 2:30 p.m., the courtroom emptied. Piles of heavy binders, packed with evidence compiled over four years, covered the tabletops. Soon they would be boxed up and stored for future use.

Outside the courthouse, a handful of protesters unfurled a banner that said, “Harvard Discriminates Against Asian-Americans.” Students wearing “Defend Diversity” T-shirts appeared out of nowhere to describe their support for the university. Photographers snapped pictures. After speaking with reporters, lawyers for both sides dispersed in all directions.

Soon there were no signs that the big-time trial had ever happened. Cars and buses kept flying down nearby Seaport Boulevard, and the rest of the world kept turning.

Still, it’s a world that’s often intrigued and concerned by how admissions offices at hyperselective colleges like Harvard operate. For better or worse, admissions officers aren’t doing what the public might think, or hope, they’re doing. They’re not picking the best applicants, by any single measure, or looking merely at numbers. And that’s why, regardless of which side wins this case, no one will ever agree that it’s fair.

Eric Hoover writes about admissions trends, enrollment-management challenges, and the meaning of Animal House, among other issues. He’s on Twitter @erichoov, and his email address is eric.hoover@chronicle.com.