In one of the most closely watched lawsuits concerning affirmative action and higher education, a federal judge Tuesday ruled that Harvard could continue considering race in its admissions process in pursuit of a diverse class.
The plaintiffs, Students for Fair Admissions, made four claims: that Harvard had intentionally discriminated against Asian Americans, used race as a predominant factor in admissions decisions, used racial balancing and considered the race of applicants without first exhausting race-neutral alternatives.
In her ruling, Judge Allison D. Burroughs detailed in a 130-page document why she believed the Harvard admissions process was not only fair but committed to attracting applicants “who are exceptional across multiple dimensions.”
1. An applicant’s race was ‘never viewed as a negative’
Burroughs acknowledged that the Harvard admissions process was “not perfect,” but that when the university considered race, it did so only to benefit applicants’ chances — as a “plus” factor — not to hurt them.
Harvard admissions officers are allowed to take students’ race directly into account only when assigning their “overall rating,” at the end of the process, when race is one of several factors on the table. The magnitude of the plus factors that Harvard gives for race, the judge said, are modest and never a “defining feature” of applications. On the whole, “race has no specified value in the admissions process and is never viewed as a negative attribute,” the judge wrote.
The plaintiffs had argued that Harvard had given considerable weight to applicants’ race, violating strict guidance by the Supreme Court.
In 2018, Harvard provided its admissions officers with more explicit guidelines on when and when not to use race in reviewing applications and during interviews.
2. There was no pattern in stereotyping Asian Americans
Asian Americans have long been dogged by stereotypes that categorize them as “quiet,” “hardworking,” “bland” and “not exciting” — stereotypes that the plaintiffs said appeared in Asian American admissions files.
But Burroughs’ ruling noted that the plaintiffs did not show that any applicant had been “referred to by these types of descriptors because of their race or that there was any sort of systemic reliance on racial stereotypes.”
She also pointed out that African American and Hispanic applicants had been described as “quiet,” “shy” and “understated” by admissions officers.
The plaintiffs had argued that Asian American applicants scored consistently lower than other races on their so-called personal ratings, a subjective measure that takes into account a student’s background and character. The judge recognized that there was a disparity but said that it was “small” and reflected neither intentional discrimination nor a process that failed to take unintended discrimination seriously.
3. ‘Sparse country’ disparities did not sway the judge
Students for Fair Admissions pointed out that in some of its search and recruitment efforts, Harvard lowered the required test scores for students from “sparse country” — rural areas with historically low numbers of Harvard admits — who identified as white, other or unidentified, but it did not lower the score for students from the same states who identified as Asian American.
The judge dismissed the argument that this was proof the Asian American population at Harvard was being intentionally suppressed. She pointed out that in more urban states where Asian American and white students had similar backgrounds, Harvard had identified Asian Americans for recruitment based on their lower ACT scores.
“Overall, the inconsistencies in the search criteria do not seem to be linked to efforts to advantage or disadvantage any particular racial group, and it was unclear from the testimony at trial whether these variations were accidental or intentional,” she wrote.
4. ‘Race-neutral alternatives’ are not sufficient
Burroughs accepted Harvard’s argument that it had adequately studied and exhausted race-neutral ways to maintain diversity on campus.
Some race-neutral alternatives, like admitting only students at the top of their classes, were simply unworkable, the judge said. To admit every applicant with a perfect grade-point average, Harvard would need to expand its class size by approximately 400% and then reject every applicant with an imperfect grade-point average without regard to other factors, including extracurricular activities and life experiences.
The plaintiff had put forth other ideas, including considering socioeconomic background instead of race and eliminating strong admissions preferences for so-called ALDC students — athletes, legacies (or children of alumni), those on the dean’s and director’s interest lists, and the children of faculty or staff.
The judge was skeptical that a socioeconomic approach would be truly race-neutral.
On ALDC students, the judge was somewhat deferential. Removing these preferences “would improve socioeconomic diversity,” she wrote, but have limited effect on racial diversity and come at a steep cost to the university’s athletics, donor relations and student life. Reasonable minds could differ on the importance of these things, she said, but the court “takes no position on these issues other than to note that these are topics best left to schools to figure out for themselves.”
5. The admissions process at Harvard remains flawed
While the judge found there was no intentional discrimination, the admissions process could likely be improved, she wrote.
Burroughs made note of implicit bias a number of times in her decision, saying that it was conceivable that the unintentional biases of admissions officers — and the guidance counselors and teachers who write recommendations — could explain some of the statistical disparities between Asian American students and other races.
But the likely effects of unintentional bias, while regrettable, were very slight, the judge said, and could not be totally eliminated in a process that requires judgments about individuals.
Harvard has made some changes since the plaintiff brought the lawsuit. The admissions procedures for the current freshman class explicitly directed officers that they “should not take an applicant’s race or ethnicity into account in making any of the ratings other than the overall rating” and that for the overall rating the “consideration of race or ethnicity may be considered only as one factor among many.”
The personal rating criteria has also been changed. Officers are instead asked to consider “qualities of character” such as “courage in the face of seemingly insurmountable obstacles,” “leadership,” “maturity,” “genuineness, selflessness, humility,” “resiliency,” “judgment,” “citizenship,” and “spirit and camaraderie with peers.”
“Harvard perhaps should have instituted an explicit written policy stating which ratings could take race into account before 2018, but that error has now been remedied,” Burroughs wrote. She also wrote that the process would likely benefit from implicit bias trainings for admissions officers.