In Fisher v. University of Texas (2013), the justices ruled 7-1 that the use of race in university admissions was permissible only if it was narrowly tailored to achieve “the educational benefits of diversity” and administrators had made a good-faith effort to consider race-neutral alternatives. In 2016, after Justice Antonin Scalia’s death, the court ruled in favor of the university in another appeal from the same case. Seemingly exhausted by the topic, the justices held 4-3 that Texas’ idiosyncratic admissions program satisfied the test. Fisher II was the first and only time Justice Anthony Kennedy has approved a use of racial preferences in college admissions. His opinion made clear that the key to surviving judicial scrutiny was “holistic” individualized review rather than quotas or other group-based screens.
Yet holistic review can facilitate discrimination by concealing a process that amounts to a quota. That’s what Harvard did when it devised this method to cap the number of Jews it admitted in the 1920s and ’30s. The university is now credibly accused of doing the same thing to Asian-Americans.
The lawsuit was filed in 2014, but paused as Fisher played out. It picked up steam in August 2017, when the Justice Department opened its own investigation into Harvard’s use of race. This past April, after the department filed a “notice of interest” that cited the need to allow public access to the lawsuit’s filings, a federal judge in Massachusetts ruled that most of the evidence the plaintiffs had obtained in discovery could be made public. It was last Friday, in legal papers filed with a motion for summary judgment—a request that the judge rule against Harvard without a trial, based on facts not in dispute.
The plaintiffs argue that Harvard intentionally discriminates. “An Asian-American applicant with a 25% chance of admission,” the plaintiffs’ motion summarizes, “would have a 35% chance if he were white, 75% if he were Hispanic, and 95% chance if he were African-American.”
That’s not because Asians are weak in areas other than academics that might legitimately be considered in admissions decisions. Harvard’s own documents show that Asians have higher extracurricular and alumni-interview scores than any other racial group, and scores from teachers and guidance counselors nearly identical to whites (and higher than African-Americans and Hispanics). Yet admissions officers assigned them the lowest “personal” rating—an assessment of “positive personality,” character traits like “likability,” “helpfulness,” “courage,” and “kindness,” and whether the applicant has good “human qualities.” It’s reminiscent of the old stereotype that Jews weren’t “clubbable.”
The plaintiffs’ motion asserts that Harvard officials’ testimony “amounts to a confession” of racial balancing. Statistical analysis of public data by Duke economist Peter S. Arcidiacono, whom the plaintiffs hired as an expert witness, reinforces the suspicion that the school manipulates subjective criteria to maintain the same student-body composition regardless of shifts in the pool of qualified applicants. If the admissions office admits what it deems to be “too many” or “too few” students of any race it reshapes the next class as a remedy. The plaintiffs conclude that “Harvard has a desired racial balance and aims for that target”—an approach the Supreme Court has consistently said is improper since it first approved the limited use of race in admissions in 1978.
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