Harvard Answers Back on Affirmative Action

In June, the group suing Harvard University over alleged anti-Asian bias in admissions released a slew of documents to back its case. The documents suggested that it is much more difficult for Asian-American applicants than for comparably qualified others to get into Harvard (where it's difficult for anyone to get in). Some of this related to Harvard's preferences for alumni children and athletes, preferences that the university has long acknowledged but to which it has not drawn attention.

There were also documents suggesting that low-income Asian applicants don't get the same help in admissions as do low-income applicants of other groups. While a single set of briefs doesn't determine the legal outcome in court cases, the June filings were a public relations win for Students for Fair Admissions, the group suing Harvard. Much of the coverage was critical of the university, with even some supporters of affirmative action saying that Harvard didn't look good.

Harvard disputed the filings at the time, but Friday was the university's turn to file its lengthy legal arguments. Technically, the briefs are about whether the federal court considering the case should award summary judgment (deciding the case without a full trial). But the Harvard documents also provide insight into how the university is mounting its defense, which by proxy may be a defense for other colleges to consider race in admissions.

With the retirement of Justice Anthony Kennedy from the Supreme Court and subsequent uncertainty over support for affirmative action on the high court, the Harvard case has arguably become more important than it was to start with -- and is increasingly seen as the next case likely to work its way to the Supreme Court. And advocates are not wasting any time. While critics of affirmative action (including the Trump administration) are backing the lawsuit, a coalition of civil rights organization plans to file briefs backing Harvard today.

Harvard's brief characterizes the Students for Fair Admissions arguments as "misleading" and lacking "a shred of documentary or testimonial evidence of the alleged scheme" to discriminate against Asian applicants. The Harvard documents quoted by the plaintiffs "are cherry-picked and misleadingly presented," the brief says. Along with contesting the lawsuit's claims, the Harvard brief also provides some inside information on how applicants are considered (and typically rejected).

Edward Blum, who is leading the Students for Fair Admissions effort, said via email that his group would soon be releasing yet more Harvard documents to bolster its case, and he said that his group's lawsuit would prevail. He did not withdraw any of the statements the group has made to date.

Why You Don’t Want to Be Called ‘Standard Strong’

Harvard has never denied that it rejects numerous Asian applicants every year, many of them with stellar academic records and the ability to succeed academically at the university. The university has said that this is true for all racial and ethnic groups and is simply a reflection of the competitiveness of admissions at Harvard. But Students for Fair Admissions says that parts of the process are biased against Asian applicants. And the exchanges in the briefs on some issues illustrate some of the realities of elite admissions.

Take, for example, the phrase "standard strong," which it turns out generally dooms an applicant's chances. Students for Fair Admissions said that Harvard documents suggest that this phrase (among many types of shorthand used to rank applicants) is regularly applied to Asian applicants who have stronger academic qualifications than other students who receive the designation.

The problem, Harvard's brief says, is that "standard strong" might be termed nothing special at Harvard.

"'Standard strong' is not an epithet; it is simply a phrase 'used to describe an applicant who is very well qualified academically and likely has a good deal of extracurricular involvement as well but isn’t distinguished in Harvard’s incredibly, incredibly competitive applicant pool,'" Harvard's brief says, quoting university admissions officials. "In other words, it refers to an applicant who is very good but who does not rise to the top of an exceptionally competitive pool."

Harvard then goes on to say that its analysis found that those designated "standard strong" were quite similar across racial and ethnic groups.

Being Asian as a ‘Positive Factor’

Another argument made by Students for Fair Admissions is that Harvard admissions officers routinely cite the potential ways that non-Asian minority applicants might add to the diversity on campus, but don't make such comments about Asian applicants.

On this issue, Harvard responds by quoting comments written by admissions counselors on applicants' portfolios that suggest Asian background is in fact cited in some cases as a "positive factor."

Among the comments cited by Harvard was one calling an applicant "a very deserving student from a first generation Vietnamese background who is valedictorian for this city-wide magnet school." Another applicant, of Nepali descent, was said to be someone who would "bring a fascinating perspective to campus." Of another, an admissions officer wrote that she "writes well about the plight of exiled Tibetans and T2 [her second teacher recommendation] lets us know that both of her parents were born in Tibetan refugee camps in India." Another applicant was described as someone who was "involved in the Asian community as EIC [editor in chief] of local journal."

These comments, Harvard's brief argues, show that the university does see ethnicity as a positive contribution with Asian applicants. "The language shows that [the university] does not (as SFFA’s arguments suggest) treat Asian-American candidates simply as a bloc; rather, Harvard’s admissions officers have a nuanced understanding of the many differences within Asian-American communities and of the ways in which those differences may enrich the diversity of the Harvard student body."

Other portions of the brief challenge the idea that Harvard has a fixed target for enrollment of different groups. On this issue, the university notes that Asian enrollments have gone up over time, and that the rates for different groups have fluctuated.

And the Harvard brief stressed repeatedly that the documents the university released to the plaintiffs, and in turn used in the plaintiffs' briefs, do not contain negative comments about Asian applicants or ever refer to a quota system or a desire to keep Asian enrollments below certain levels. "It is inconceivable that such a pervasive conspiracy would give rise to no evidence of its existence -- not a single admissions officer (current or former) who would testify to the nefarious scheme, nor a single document alluding to it," Harvard's brief says.

Rejecting the Comparison to Anti-Jewish Bias

Part of the Harvard brief suggest a focus on public opinion and not just legal opinion. The plaintiffs have repeatedly cited Harvard's past discrimination (a century ago) against Jewish applicants as an example of what the university would do to maintain a student body with characteristics it seeks. And supporters of the lawsuit have repeatedly linked the university's policies in the early 20th century with its policies of late. An essay in The Wall Street Journal, for example, referring to Asians, was called "The New Jews of Harvard Admissions." A column in USA Today featured the headline "Asians Get the Ivy League's Jewish Treatment."

For decades now, Harvard has acknowledged that past discrimination and condemned it.

Harvard's brief notes that the court in this case has rejected the idea that the anti-Semitic actions of the last century should be considered relevant here, although the plaintiffs argue that those anti-Jewish quotas were the "original sin" on which anti-Asian bias is based.

"SFFA’s invocation of ancient history should be seen for what it is: a publicity-seeking attempt to distract from its lack of any evidence that Harvard discriminates against Asian-American applicants," the Harvard brief argues.