In advance of Harvard admissions trial, president defends University processes

As Harvard prepares to defend its admissions policies in U.S. District Court in Boston next Monday, the University’s new president delivered an unambiguous message on Wednesday: “The College’s admissions process does not discriminate against anybody.”

Larry Bacow, who was inaugurated last week as Harvard’s 29th leader, sent a letter to the Harvard community outlining the University’s unwavering commitment to creating a diverse and inclusive campus. The College’s use of race as one factor among many in its whole-person admissions review is central to that mission, wrote Bacow, and to Harvard’s goal of creating a campus filled with scholars who learn from each other and from the differences they bring with them.

“I want all of you to know that each Harvard College student is admitted affirmatively. Each student brings something special to our community and contributes to our rich learning environment in a way that is unique. Harvard would be a dull place — and not likely achieve the educational aspirations we have for our students — if we shared the same backgrounds, interests, experiences, and expectations for ourselves.”

Bacow said he was confident the facts would prove Harvard does not discriminate and noted that the U.S. Supreme Court has “has twice ruled on this issue and has held up our admissions process as an exemplar of how, in seeking to achieve a diverse student body, race may enter the process as one factor among many in consideration.”

Bacow’s comments came just before trial in a case challenging how Harvard College selects students for its first-year class. The trial is the latest chapter in a lawsuit filed in 2014 by Students for Fair Admissions (SFFA), an organization founded by anti-race-conscious admissions activist Edward Blum, who has filed a range of suits in recent years targeting civil rights protections. This case centers on whether Harvard’s admissions policies inappropriately disadvantage Asian American applicants.

Harvard has denied the allegations, noting in legal briefs, statements, and letters released by the University and by administration officials that it considers race as only one among many factors in deciding which highly qualified candidates to admit each year, a practice supported by repeated rulings from the nation’s highest court.

Four decades of Supreme Court rulings

In 1978, the Supreme Court, in Regents of the University of California v. Bakke, upheld considering race in admissions. In his opinion, Associate Justice Lewis F. Powell Jr. cited Harvard’s admissions program as a model.

“In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial, and ethnic groups,” Powell wrote. “Contemporary conditions in the United States mean that, if Harvard College is to continue to offer a first-rate education to its students, minority representation in the undergraduate body cannot be ignored.”

The court reaffirmed that decision in 2003 in a case involving the University of Michigan Law School and again in 2016 in Fisher v. the University of Texas at Austin, another case led by Edward Blum. Writing for the majority, Associate Justice Anthony Kennedy noted then that “the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence.”

“As this court has said, enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races,’” Kennedy wrote, quoting a decision in an earlier case. “Equally important, ‘Student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.’”

Throughout this period, Harvard has used a narrowly tailored process designed to create the educational benefits associated with a diverse campus community.

“Harvard will continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years,” said a statement posted on the University’s admissions website in July. “Harvard is deeply committed to bringing together a diverse campus community where students from all walks of life have the opportunity to learn with and from each other.”

The suit could produce a range of opinions, Bacow acknowledged in his letter Wednesday, and it could “create divisions on our campus and in our broader alumni community.” But he reminded his readers that respectful discourse and understanding are vital to the notion of a tolerant Harvard community that welcomes myriad viewpoints and perspectives.

“Reasonable people may have different views, and I respect the diversity of opinion that this case may generate. I would hope all of us recognize, however, that we are members of one community — and will continue to be so long after this trial is in the rearview mirror. What kind of community we will be, however, will be determined by how we treat each other over the next few weeks.

“As I said in my inaugural address, we must be quick to understand and slow to judge. I hope we will approach one another with mutual respect and consider all points of view, not just during the trial but also beyond it.”

In the lead-up to the trial, amicus briefs backing Harvard’s admission’s policies have been signed by hundreds of supporters, including students, student and alumni groups, national organizations, peer institutions, and authorities on economics, law, education, and the social sciences. Many briefs came in response to a legal filing by U.S. Attorney General Jeff Sessions’ Justice Department that endorsed SFFA’s position. Three conservative organizations dedicated to ending race-conscious admissions filed amicus briefs in support of SFFA in August, joining several others that filed over the summer.

Harvard on allegations: Misguided or incorrect

Harvard officials say that many of SFFA’s accusations are either misguided or simply incorrect.

Harvard College receives more than 40,000 applications each year for fewer than 2,000 openings. The majority of applicants are academically qualified. In a recent admissions cycle, for instance, more than 8,000 domestic applicants had perfect GPAs; more than 3,400 applicants had perfect SAT math scores; and more than 2,700 applicants had perfect SAT verbal scores. As a result, officials argue that the College must consider more than grades and test scores to decide which academically qualified students to admit.

Within that context, Harvard’s defenders note that the percentage of Asian Americans in the College’s admitted classes has grown by 27 percent since 2010, and Asian Americans constitute nearly 23 percent of the 2022 admitted class.

A detailed review of Harvard’s admissions data by University of California at Berkeley Professor of Economics David Card comprehensively analyzed the admissions database and concluded there was no statistical evidence of discrimination against Asian Americans.

Blum and other conservative activists have argued that Harvard could use other methods of achieving a diverse campus that don’t rely on using race as one factor in admissions. But after studying more than a dozen race-neutral alternatives, a Harvard committee found that none of these practices “could promote Harvard’s diversity-related educational objectives as well as Harvard’s … admissions program while also maintaining the standards of excellence that Harvard seeks in its student body.”

The upcoming trial

While both sides traded briefs asking the court to issue summary judgment — which, if granted in either side’s favor, would eliminate the need for a trial — Judge Allison D. Burroughs determined late last month that the case would be heard in a courtroom.

“In sum, whether SFFA may prove its intentional discrimination claim requires a close review of the conflicting expert testimony, the available documents, and the testimony of the Admissions Office employees in the context of a trial,” Burroughs wrote in a letter to the court.

Although Harvard had cited SFFA for lack of evidence and for “invective, mischaracterizations, and in some cases outright misrepresentations” as reasons for a summary judgement in its favor, Harvard also stated it welcomes the opportunity to be heard in the courtroom.

“From the start, Harvard has agreed with the view expressed today by the Court, that this case can be — and should be — resolved at trial. Thorough and comprehensive analysis of the evidence makes clear that Harvard College does not discriminate against applicants from any group, including Asian Americans, whose share of the admitted class has grown significantly by 27 percent since 2010. We look forward to making our case at trial,” read a Harvard statement in September.

Harvard officials also have said they look forward to making their case.

“I have been a Harvard student, a faculty member, an Overseer, a Corporation member, and now trial counsel in the admissions case — in every capacity I benefited from and have been impressed by Harvard’s commitment to embrace diversity, work to improve at it, and to assess every aspect of the thousands of impressive applicants who seek admission every year. I look forward to helping convey to the Court the care and thoroughness that Harvard brings to this critical aspect of its mission,” said William F. Lee ’72, Harvard’s lead trial lawyer.

According to the lists of witnesses filed with the court, several Harvard administrators will be called to testify, including former Harvard President Drew Faust, Daroff Dean of Harvard College Rakesh Khurana, and Dean of Admissions William Fitzsimmons. Neither SFFA’s founder, Edward Blum, nor any students are expected to testify on behalf of SFFA. That organization filed multiple briefs to prevent Harvard students from testifying at trial. But on Oct. 10, Burroughs ruled that eight former and current students who support Harvard’s position would be allowed to give testimony, as well as opening and closing statements.

Many analysts consider the case an attack on diversity more broadly, one that could transform higher education by effectively overhauling admissions processes at colleges and universities nationwide. Others think the case could land in the Supreme Court in coming years.

The trial will take place at the John Joseph Moakley U.S. Courthouse in Boston and is expected to last three weeks.

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