‘Everything Is Not Sunshine’: What the Harvard Decision Means for Race-Conscious Admissions

Harvard University does not discriminate against Asian American students through its use of race-conscious admissions, a federal judge ruled in a decision released on Tuesday. The university’s admissions process “passes constitutional muster,” Allison D. Burroughs, a U.S. district judge, wrote in her decision, and is necessary for Harvard to achieve its education goals.

“Ensuring diversity at Harvard relies, in part, on race-conscious admissions,” Burroughs wrote. “The use of race benefits certain racial and ethnic groups that would otherwise be underrepresented at Harvard and is therefore neither an illegitimate use of race or reflective of racial prejudice.”

Students for Fair Admissions, the anti-affirmative-action nonprofit group that sued Harvard in 2014, will appeal the decision. The conservative activist Edward J. Blum, the organization’s president, said in a written statement on Tuesday that SFFA is “disappointed that the court has upheld Harvard’s discriminatory admissions policies.” He said that the evidence presented during the trail “revealed Harvard’s systematic discrimination against Asian American applicants.”

Harvard will count the ruling as a big win, and supporters of race-conscious admissions will, too. But experts say the outcome shows how careful institutions must be in practicing affirmative action when they decide whom to admit. Legal analysts say the issue is likely to make its way back to the U.S. Supreme Court, whose makeup is more conservative now than when it upheld affirmative action just three years ago.

The closely watched trial took place over three weeks in Boston last October. It was unusual because it invoked the rights of Asian American applicants instead of white ones, as in other cases against the University of Texas at Austin, and because it offered an opportunity for the world to peer into Harvard’s previously opaque admissions practices. It was also the first case challenging affirmative action to go to trial since the Trump administration took office. Affirmative-action policies are common among selective colleges and were defended by the Obama administration, but Trump’s Justice Department backed the plaintiff in this case.

Blum’s group alleged that Harvard admissions officers penalized Asian American students in awarding points based on applicants’ personalities; Asian Americans consistently ranked lower on that metric and therefore were denied admission, despite their higher test scores and grades, the group said. SFFA lawyers argued that Harvard’s admissions officers attempted to “balance” its class by race and ethnicity, and sought to fulfill racial quotas — both illegal practices.

In her decision on Tuesday, Burroughs wrote that she saw no evidence that Harvard admissions officials discriminated against Asian American applicants. Yes, Asian Americans received lower scores for their personalities, she said, but the “statistical disparity is relatively minor.” Burroughs said the reason for the lower scores was unclear, but she did not see it as intentional discrimination. She noted that “SFFA did not present a single admissions file that reflected any discriminatory animus, or even an application of an Asian American who it contended should have or would have been admitted absent an unfairly deflated personal rating.”

Though SFFA did not ask students to testify, some current Harvard students did, including Asian American students who said they believed their backgrounds had helped them get into Harvard. Burroughs took note of their testimony and agreed with them that eliminating the consideration of race could “significantly disadvantage at least some Asian American applicants.”

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?

Burroughs acknowledged Harvard admissions officials’ practice of looking at statistics about their admitted students’ race, gender, geography, financial-aid needs, and other metrics throughout the admissions process, and comparing the statistics to those of the previous year. But she said the practice did not prove that the officers were attempting to “balance” the admitted class by race or that they had quotas. She also dismissed one of SFFA’s more pointed pieces of evidence — that the admissions office targeted potential applicants with recruitment letters in a way that put Asian Americans at a disadvantage — because those letters had no bearing on admissions decisions.

“SFFA cannot maintain a viable claim for intentional discrimination based merely on the allegation that some limited number of Asian American applicants did not receive certain pieces of marketing mail,” Burroughs wrote.

The judge took seriously Harvard officials’ insistence that they had thoroughly researched race-neutral alternatives to their policy, and those officials’ findings that the alternatives would not be enough to help them achieve the level of diversity that they wanted. The race-neutral alternatives suggested either were not workable or would not offset the likely loss of African American and Hispanic students if admissions officials stopped considering race, the judge wrote.

Burroughs concluded by saying that Harvard’s admissions process is not perfect. She recommended training to avoid implicit bias and clear guidelines on the use of race in admissions. She also said the practice of giving applicants numerical ratings should be monitored to ensure that no significant racial disparities emerge in the scores.

But Burroughs wrote that while the Supreme Court has stipulated that affirmative-action policies are meant to expire when they are no longer needed, that time had not yet come. The only way to get there, she said, is by maintaining race-conscious admissions policies like the one used at Harvard.

“The rich diversity at Harvard and other colleges and universities, and the benefits that flow from that diversity, will foster the tolerance, acceptance, and understanding that will ultimately make race-conscious admissions obsolete,” Burroughs wrote.

‘Extremely Thorough’

The judge looked very closely at the evidence and data presented during the trial, and the analyses by the economists who testified for both sides. She described the evidence and her assessment of it in painstaking detail in a 130-page ruling.

“With this order there’s a lot of detail here about the trial court’s findings of fact,” said Kimberly West-Faulcon, a law professor at Loyola Marymount University. “It is extremely thorough.”

Art Coleman, managing partner at the consulting firm EducationCounsel and deputy assistant secretary of the Education Department’s Office for Civil Rights during the Clinton administration, said the level of detail was a reminder of how important it is for admissions officials at all universities to document what they do and why in order to win such a case. It means that this ruling applies to only one university and does not mean that all admissions officials who use race-conscious admissions policies can rest on their laurels.

“This decision also highlights that Harvard is Harvard, UNC is UNC, and every university is different,” Coleman said. “So my early line is, Don’t overreact to this case. Everything is not sunshine.”

Neal Hutchens, a professor of higher education at the University of Mississippi, said that cases like this one show that universities “are really having to generate a lot of data and analyses to defend what they’re doing.” That burden is significant, he said.

“Harvard has deep pockets,” Hutchens said. “But you worry about other institutions’ being able to do this. This case shows that you really have to mind your p’s and q’s in operating a holistic admissions process.”

The Campaign Continues

Many of the case’s observers have speculated that it will eventually appear on the Supreme Court’s docket, as is SFFA’s intent. West-Faulcon said that even if the Harvard case isn’t taken up by the court, the groups that oppose affirmative action will continue their “multidecade campaign to end race-based affirmative action through litigation.”

Indeed, Roger Clegg, general counsel of the Center for Equal Opportunity, a conservative think tank, said that the ultimate goal is to overturn Grutter v. Bollinger, the 2003 case that established that universities could consider race in admissions decisions because of the educational benefits students derive from a diverse student body.

“The evidence of the educational benefits is weak, and those benefits are marginal,” Clegg said.

Burroughs was clear in disagreeing with that point. She quoted the trial testimony of Ruth J. Simmons, president of Prairie View A&M University, in Tuesday’s decision: “I’ve spoken about the conflicts in society, how deeply they run, how they resurface from time to time,” Simmons said when asked about the benefits of diversity. “How can we imagine a world in which we are not creating leaders and citizens who have the capacity to mediate those differences? I cannot imagine it.”

OiYan Poon, an associate professor of higher education at Colorado State University at Fort Collins who submitted a brief in support of Harvard, said she was pleased that the judge had acknowledged “the importance of the educational benefits that result from diversity.”

“Harvard’s race-conscious holistic-review process allows students, including Asian Americans, to bring their whole stories to the table,” Poon said.

The litigation surrounding the consideration of race in admissions does not end here. Not only is Tuesday’s decision likely to be appealed, but Harvard is not the only university facing such a legal challenge. The University of North Carolina at Chapel Hill has also been sued by Students for Fair Admissions, for allegedly giving “significant racial preferences” to underrepresented minority applicants rather than using race-neutral alternatives to select a freshman class. That case was allowed to go forward on Monday.

So what’s next? It’s hard to say exactly. There could first be an appeal to a federal appellate court, and then there could be the question of whether the Supreme Court, in turn, would accept an appeal. Even if the case does come to a conclusion, the spate of other lawsuits suggests that 40 years of litigation over affirmative action are unlikely to end with the Harvard case.

Correction (10/2/2019, 7:46 a.m.): This article originally misspelled the surname of Kimberly West-Faulcon. The article has been updated with the correct spelling.

Eric Hoover contributed to this report.

Nell Gluckman writes about faculty issues and other topics in higher education. You can follow her on Twitter @nellgluckman, or email her at nell.gluckman@chronicle.com.