Defending Affirmative Action

A federal lawsuit challenging Harvard University's affirmative action policies is about to go to trial, with the Justice Department backing claims of plaintiffs who say the university is discriminating against Asian-American applicants.

At one level, the case is only about Harvard, but the university's policies are similar to those of many other institutions with competitive admissions -- so a defeat for the university could set legal precedents far beyond Cambridge.

Against that backdrop, Drew Faust, in her last month as Harvard's president, on Tuesday sent the campus a message pledging that the university would vigorously defend its policies. (Lawrence Bacow, who will succeed Faust, has also pledged to defend the university's diversity efforts.)

Faust's message didn't break new legal ground in laying out Harvard's argument. But it suggested concerns that some of the data the plaintiffs will present may raise questions about the university's policies in people's minds. The plaintiffs have repeatedly cited the high SAT scores and grades of Asian-American applicants who are rejected to suggest that they must be victims of discrimination.

Those who oppose the consideration of race in admissions have picked up this theme, noting that elite universities that do not consider race in admissions end up with larger Asian-American shares of their classes than do institutions such as Harvard, at which 22.7 percent of incoming students last year were Asian. (At the University of California, Berkeley, last fall, 39 percent of new students were Asian-American.)

In her message to the campus, Faust warned the following of the plaintiffs' arguments: "These claims will rely on misleading, selectively presented data taken out of context. Their intent is to question the integrity of the undergraduate admissions process and to advance a divisive agenda."

While Harvard and other universities sometimes avoid comments on ongoing legal battles, Faust indicated that would not be the case with this trial.

"As this case generates widespread attention and comment, Harvard will react swiftly and thoughtfully to defend diversity as the source of our strength and our excellence -- and to affirm the integrity of our admissions process. A diverse student body enables us to enrich, to educate, and to challenge one another," she wrote.

"As a university community, we are bound across differences by a shared commitment to learning, to pursuing truth, and to embracing the rigor and respect of argument and evidence. We never give up on the promise of a world made better by an assumption revisited, an understanding expanded, or a truth questioned -- again and again and again."

In her message, Faust pointed to a Harvard website with more information about the university's defense of its practices. Harvard maintains that it considers race and ethnicity, among many other factors, in building a class, but that it does so without quotas.

The Harvard website suggests that the university's defense may be similar to that used by Princeton University when it was investigated on similar charges -- and in 2015 cleared of discrimination -- by the Education Department's Office for Civil Rights.

Princeton never denied, nor has Harvard, denying admissions to numerous highly qualified Asian-American applicants with stellar credentials. Princeton's argument was that it rejects so many people of all ethnic backgrounds that there was no evidence of bias. An OCR report suggested that the argument was convincing to government investigators.

"The university told OCR that 82 percent of the valedictorians in the applicant pool for the Class of 2010 were not admitted, and over 50 percent of applicants with perfect SAT I scores of 2,400 were not admitted," the OCR report said. "The university added that for the Class of 2010 -- for which the university admitted only 1,790 students -- there were more than 6,300 applicants who had SAT scores of 750 or higher on the math portion of the test, and there were more than 4,800 applicants that year who scored 750 or higher on the verbal portion of the SAT. More than 5,600 applicants for the Class of 2010 alone had GPAs of 4.0 or higher."

On its website, Harvard is releasing similar statistics about its own admissions practices. Specifically, the university is saying that "perfect" test scores and grades don't assure anyone of admission.

"In a recent admissions cycle (in which fewer than 2,000 applicants out of approximately 40,000 were admitted), over 8,000 domestic applicants had perfect GPAs, over 3,400 applicants had perfect SAT math scores [and] over 2,700 applicants had perfect SAT verbal scores," the university says.

Edward Blum, chief strategist for those suing Harvard, declined to comment on Faust's statements, saying that the plaintiffs would release their responses in court filings.