Practice Mandated by Supreme Court Is Focus of Testimony in Harvard Admissions Trial

Colleges and universities are expected to consider race-neutral admissions policies before they can take race into account in evaluating undergraduate-student applications. That’s thanks to a line of U.S. Supreme Court rulings that culminated in a 2016 decision upholding the University of Texas at Austin’s use of race in admissions.

In a federal courtroom here on Tuesday, lawyers scrutinized whether Harvard University officials had done enough to determine that race-neutral alternatives would not work for them. Two officials who testified — Rakesh Khurana, dean of Harvard College, the university’s undergraduate division; and Michael D. Smith, a former dean of the Faculty of Arts and Sciences — were adamant that such an alternative would result in lower academic standards or less racial diversity among its admitted students.

“I can’t overstate the harm that this kind of change would have to Harvard College’s admissions program,” Smith said. “We could not admit a class that is both excellent in the characteristics that we value on our campus and widely diverse.”

Smith and Khurana testified during the second week of a trial in which Harvard has been accused by Students for Fair Admissions, a group that opposes affirmative action, of discriminating against Asian-American students in its admissions process. The university denies those claims, saying that admissions officials consider race because they want to admit a diverse class, but that a student’s race never hurts his or her chance of being accepted.

The trial has been watched closely, both because of the details it has revealed about Harvard’s once-secretive admissions process and because of the possibility that it could be appealed and wind up before a conservative-dominated Supreme Court. If that happens, the ability of colleges — public and private — to use affirmative action in admissions could be in jeopardy.

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?

Harvard’s lawyers seem to be preparing for that. On Tuesday, Seth P. Waxman, a lawyer representing Harvard, questioned Smith. Waxman is a well-known appellate and Supreme Court lawyer who was the solicitor general of the United States during the Clinton administration. He has argued high-profile cases before the Supreme Court, including Boumediene v. Bush, when he represented foreign detainees at Guantánamo Bay, Cuba, who argued successfully that they had a right to challenge their detention in a civilian court.

Waxman asked Smith about a three-person committee that he led in a review of alternatives to race-conscious admissions. The panel’s other two members were Khurana and William R. Fitzsimmons, dean of admissions. They reviewed models, created by economists, that predicted what would happen to the pool of students admitted to Harvard if admissions officials stopped considering race and gave more weight to other factors, such as socioeconomic background. In all of the models, the number of African-American students admitted declined.

“This felt like we’re going backwards from where we are today,” Smith said. He added that some Harvard students who were part of an underrepresented minority group already felt isolated. “We’re not looking to make that worse.”

Smith’s committee issued a report in April concluding that race-neutral alternatives were not viable for Harvard. Khurana testified earlier in the day that he stands by the report, but believes Harvard still has work to do to make the admissions process more equitable.

“I know talent is everywhere,” he said, “but opportunities are not.”

Charts and Emails

Also on Tuesday, Elizabeth Yong, a former admissions official, testified about charts she had created and sent to Fitzsimmons to show the breakdown of applicants and admitted students by race, gender, expected major, and other factors at various points in the admissions cycle. A lawyer for Students for Fair Admissions tried to show that Fitzsimmons was tracking the racial characteristics of the applicants throughout the process.

Yong was also shown emails that she had exchanged with another admissions official, Grace Cheng. Some were sent after Harvard was accused in the press of discriminating against Asian-American applicants, but before the lawsuit was filed.

In one from 2013, Cheng wrote to Yong that “Fitz is on a tear about this Asian-American thing,” in a reference to Fitzsimmons. In another, Cheng wrote to Yong that Edward J. Blum, who was behind the case against Texas, was looking for Asian-American students who had been rejected by Harvard to recruit as plaintiffs in a lawsuit against the university.

“Easily defensible,” Cheng wrote. “My hobby is quickly becoming telling people they are ridiculous.”

A lawyer for Students for Fair Admissions, Katherine L.I. Hacker, asked Yong: “Do you agree that claims of discrimination should be treated with respect and investigated?”

“They should be taken seriously,” Yong said.

Yong, a Harvard alumna, also testified that when she started working in the admissions office, in the early 1980s, she sneaked a look at her application — “everybody does,” she said. She had been a capable student, she said, but was not immediately distinguishable from others. Yong believes that being Asian-American and a first-generation college applicant helped her get into Harvard.

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.