Harvard Can Be Diverse Without Using Race, Expert Testifies
Law360, Boston (October 22, 2018, 7:18 PM EDT) -- Harvard University can achieve both racial diversity and a higher degree of socioeconomic and geographic diversity if it stopped considering race in its admissions process, according to testimony Monday by an expert for Students for Fair Admissions, a group suing the school claiming its race-conscious process discriminates against Asian-American applicants.
Richard Kahlenberg, who has undergraduate and law degrees from Harvard and works for a progressive think tank called the Century Foundation, said giving a greater boost to students from lower-income homes rather than considering race is the better approach to achieving a healthy balance in an admitted class. He testified during the start of the bench trial’s second week that he supports diversity on college campuses, but said considering race has resulted in a class that favors the privileged and those who live relatively close to Harvard’s Cambridge, Massachusetts, campus.
“The socioeconomic diversity at Harvard is deeply lacking, there are 23 times as many rich kids on campus as poor kids and, in terms of geographic diversity, they are heavily weighted towards New England, other parts of the country are underrepresented,” Kahlenberg said on the stand. “In my opinion, there are a number of race-neutral alternatives that would give Harvard the opportunity to obtain the educational benefits of diversity without compromising the excellence of the institution.”
Kahlenberg showed several hypothetical models for the Harvard Class of 2019, which is 40 percent white, 24 percent Asian-American, 14 percent African-American and 14 percent Hispanic, with 82 percent of the admitted students coming from what he termed “advantaged” households.
By eliminating race along with the strong boost, or “tip” Harvard gives to the children of alumni or faculty members and providing a boost based on socioeconomic background, Harvard would have admitted four percent more Asian-American students and four percent fewer African-American applicants that year, Kahlenberg testified. Just over half of the class would come from disadvantaged households, he added.
“Harvard already has a system of preferences and tips,” he said, “this would just adjust them.”
But William Lee of WilmerHale, counsel for Harvard, painted Kahlenberg as a hired gun and longtime friend of Edward Blum, the anti-affirmative action legal strategist behind the suit. Kahlenberg long ago made up his mind on the issue of whether a socioeconomic model is better than a race-based model for formulating college acceptance, Lee said during cross-examination, noting Kahlenberg has been paid by SFFA for more than four years and consulted with the group in writing its 2014 complaint.
“You have been a long time advocate of using economic status rather than race,” Lee said, “isn’t that correct?
“Not an advocate in the sense that I have a constituency I am representing,” Kahlenberg replied. “Mine is a research basis.”
Lee pressed Kahlenberg on the fact that he has never been involved in the admissions process of any public or private college and he has never served in the administration of a university. Harvard has argued that using Kahlenberg’s models would result in lower average test scores and grades for the class, diluting the elite status of selective universities. It would also result in fewer African-American students being admitted,Harvar argues, and would require the Ivy League school to jack up its financial aid offering.
Kahlenberg bristled at the notion that Harvard could not afford to pay more in financial aid.
“Harvard University is literally the richest university in the entire country,” he testified. “Its $37 billion endowment is bigger than the gross domestic product of half the world’s countries.”
Kahlenberg began to stray into a recent fundraising bid by the school which drew an objection.
“Let’s just leave it as ‘Harvard is rich,’” quipped U.S. District Judge Allison D. Burroughs, who is tasked with deciding the landmark case that many feel will wind up before the U.S. Supreme Court.
On cross-examination, Lee also tried to show Kahlenberg’s own model is anything but race-blind, since it relies on geographic college board “clusters” and the most predominant factor in determining these groupings. Kahlenberg said the approach is “race-neutral,” since it does not consider the individual race of an applicant. But a common theme emerges from the Kahlenberg simulations, Lee said.
“In every single one of the seven simulations, the racial group that bears the burden of race-neutral alternatives is African-American students?” Lee asked. “Did you talk to a single student to see what a 40 percent reduction in the amount of African-American students would do to the campus? Did you talk to any faculty member?”
“That was not part of my research,” Kahlenberg answered.
Lee also brought up the report of a committee created to study race-neutral alternatives at the school, which found “none of these alternative admissions practices — either alone or in combination — would enable Harvard to achieve its diversity-related educational objectives without significant and unacceptable sacrifice to other institutional imperatives.”
“I think the evidence laid out in my report is far more persuasive,” Kahlenberg said in response.
In addition to Kahlenberg, Harvard’s Director of Admissions Marlyn McGrath and Rakesh Khurana, the dean of Harvard College, both took the stand.
McGrath echoed the testimony of multiple Harvard admissions officials who have said a candidate’s race is never used against him or her and is never the only factor used for admission.
“Our applicant pool is very strong,” she said. “(The racial) tip is to help us follow, more energetically, an otherwise very strong candidate through the process.”
McGrath said numerous factors weigh into an admissions decision, another common theme emphasized by Harvard officials. She has closely observed the admissions process for years and said she has never seen any evidence to back SFFA’s claim that the school discriminates against Asian-Americans.
SFFA has argued Harvard unfairly caps the number of Asian-Americans admitted each year, using the highly subjective “personal rating” to give lower scores to applicants of that ethnicity who otherwise outperform their white peers academically and in terms of extracurricular activities. Harvard denies using quotas and has defended its admissions process, saying it uses race as a plus factor in the narrowly tailored way outlined by the Supreme Court, which held up the school as “an illuminating example of a constitutionally correct admissions process” in its 1978 ruling in Regents of the University of California v. Bakke.
Kahlenberg himself has extolled Harvard’s admissions and recruiting efforts under the current dean, William Fitzsimmons, who himself testified last week, Lee pointed out.
Khurana will be back on the stand Tuesday in the Boston federal courthouse before Judge Burroughs, and the case is expected to last through next week. He served on the committee to study race-neutral alternatives and its conclusion was that going to such a model would mean about 10 percent fewer students with the top academic rating got into Harvard.
SFFA lawyer Adam Mortara of Bartlit Beck Herman Palenchar & Scott LLP pressed Khurana on why the school doesn’t admit a more socioeconomic diverse class, portraying Harvard as a bastion of elitism rather than a shining example of diversity.
“What is so special about wealthy people that Harvard needs to have them overrepresented by a factor of six on its campus?” Mortara asked.
“We are not trying to mirror the socioeconomic or income distribution of the U.S., we’re trying to recognize talent,” Khurana replied, stressing all students admitted to Harvard are academically qualified to be there.
Just before the trial began, Judge Burroughs denied cross-summary judgment motions, in part because of “the parties’ heavy reliance on statistical evidence and expert testimony.” Each side is expected to have experts testify as to whether the school discriminates against Asian-American applicants.
Students for Fair Admissions is represented by Adam K. Mortara, J. Scott McBride, John M. Hughes, Katherine L.I. Hacker and Krista J. Perry of Bartlit Beck Herman Palenchar & Scott LLP, William S. Consovoy, Thomas R. McCarthy, Michael H. Park, John Michael Connolly and Patrick Strawbridge of Consovoy McCarthy Park PLLC, and Paul M. Sanford of Burns & Levinson LLP.
Harvard is represented by Seth P. Waxman, Paul R.Q. Wolfson, Daniel Winik, Debo P. Adegbile, William F. Lee, Felicia H. Ellsworth, Andrew S. Dulberg, Elizabeth C. Mooney and Danielle Conley of WilmerHale.
The case is Students for Fair Admissions v. President and Fellows of Harvard College, case number 1:14-cv-14176, in the U.S. District Court for the District of Massachusetts.
--Editing by Dipti Coorg.
Richard Kahlenberg, who has undergraduate and law degrees from Harvard and works for a progressive think tank called the Century Foundation, said giving a greater boost to students from lower-income homes rather than considering race is the better approach to achieving a healthy balance in an admitted class. He testified during the start of the bench trial’s second week that he supports diversity on college campuses, but said considering race has resulted in a class that favors the privileged and those who live relatively close to Harvard’s Cambridge, Massachusetts, campus.
“The socioeconomic diversity at Harvard is deeply lacking, there are 23 times as many rich kids on campus as poor kids and, in terms of geographic diversity, they are heavily weighted towards New England, other parts of the country are underrepresented,” Kahlenberg said on the stand. “In my opinion, there are a number of race-neutral alternatives that would give Harvard the opportunity to obtain the educational benefits of diversity without compromising the excellence of the institution.”
Kahlenberg showed several hypothetical models for the Harvard Class of 2019, which is 40 percent white, 24 percent Asian-American, 14 percent African-American and 14 percent Hispanic, with 82 percent of the admitted students coming from what he termed “advantaged” households.
By eliminating race along with the strong boost, or “tip” Harvard gives to the children of alumni or faculty members and providing a boost based on socioeconomic background, Harvard would have admitted four percent more Asian-American students and four percent fewer African-American applicants that year, Kahlenberg testified. Just over half of the class would come from disadvantaged households, he added.
“Harvard already has a system of preferences and tips,” he said, “this would just adjust them.”
But William Lee of WilmerHale, counsel for Harvard, painted Kahlenberg as a hired gun and longtime friend of Edward Blum, the anti-affirmative action legal strategist behind the suit. Kahlenberg long ago made up his mind on the issue of whether a socioeconomic model is better than a race-based model for formulating college acceptance, Lee said during cross-examination, noting Kahlenberg has been paid by SFFA for more than four years and consulted with the group in writing its 2014 complaint.
“You have been a long time advocate of using economic status rather than race,” Lee said, “isn’t that correct?
“Not an advocate in the sense that I have a constituency I am representing,” Kahlenberg replied. “Mine is a research basis.”
Lee pressed Kahlenberg on the fact that he has never been involved in the admissions process of any public or private college and he has never served in the administration of a university. Harvard has argued that using Kahlenberg’s models would result in lower average test scores and grades for the class, diluting the elite status of selective universities. It would also result in fewer African-American students being admitted,Harvar argues, and would require the Ivy League school to jack up its financial aid offering.
Kahlenberg bristled at the notion that Harvard could not afford to pay more in financial aid.
“Harvard University is literally the richest university in the entire country,” he testified. “Its $37 billion endowment is bigger than the gross domestic product of half the world’s countries.”
Kahlenberg began to stray into a recent fundraising bid by the school which drew an objection.
“Let’s just leave it as ‘Harvard is rich,’” quipped U.S. District Judge Allison D. Burroughs, who is tasked with deciding the landmark case that many feel will wind up before the U.S. Supreme Court.
On cross-examination, Lee also tried to show Kahlenberg’s own model is anything but race-blind, since it relies on geographic college board “clusters” and the most predominant factor in determining these groupings. Kahlenberg said the approach is “race-neutral,” since it does not consider the individual race of an applicant. But a common theme emerges from the Kahlenberg simulations, Lee said.
“In every single one of the seven simulations, the racial group that bears the burden of race-neutral alternatives is African-American students?” Lee asked. “Did you talk to a single student to see what a 40 percent reduction in the amount of African-American students would do to the campus? Did you talk to any faculty member?”
“That was not part of my research,” Kahlenberg answered.
Lee also brought up the report of a committee created to study race-neutral alternatives at the school, which found “none of these alternative admissions practices — either alone or in combination — would enable Harvard to achieve its diversity-related educational objectives without significant and unacceptable sacrifice to other institutional imperatives.”
“I think the evidence laid out in my report is far more persuasive,” Kahlenberg said in response.
In addition to Kahlenberg, Harvard’s Director of Admissions Marlyn McGrath and Rakesh Khurana, the dean of Harvard College, both took the stand.
McGrath echoed the testimony of multiple Harvard admissions officials who have said a candidate’s race is never used against him or her and is never the only factor used for admission.
“Our applicant pool is very strong,” she said. “(The racial) tip is to help us follow, more energetically, an otherwise very strong candidate through the process.”
McGrath said numerous factors weigh into an admissions decision, another common theme emphasized by Harvard officials. She has closely observed the admissions process for years and said she has never seen any evidence to back SFFA’s claim that the school discriminates against Asian-Americans.
SFFA has argued Harvard unfairly caps the number of Asian-Americans admitted each year, using the highly subjective “personal rating” to give lower scores to applicants of that ethnicity who otherwise outperform their white peers academically and in terms of extracurricular activities. Harvard denies using quotas and has defended its admissions process, saying it uses race as a plus factor in the narrowly tailored way outlined by the Supreme Court, which held up the school as “an illuminating example of a constitutionally correct admissions process” in its 1978 ruling in Regents of the University of California v. Bakke.
Kahlenberg himself has extolled Harvard’s admissions and recruiting efforts under the current dean, William Fitzsimmons, who himself testified last week, Lee pointed out.
Khurana will be back on the stand Tuesday in the Boston federal courthouse before Judge Burroughs, and the case is expected to last through next week. He served on the committee to study race-neutral alternatives and its conclusion was that going to such a model would mean about 10 percent fewer students with the top academic rating got into Harvard.
SFFA lawyer Adam Mortara of Bartlit Beck Herman Palenchar & Scott LLP pressed Khurana on why the school doesn’t admit a more socioeconomic diverse class, portraying Harvard as a bastion of elitism rather than a shining example of diversity.
“What is so special about wealthy people that Harvard needs to have them overrepresented by a factor of six on its campus?” Mortara asked.
“We are not trying to mirror the socioeconomic or income distribution of the U.S., we’re trying to recognize talent,” Khurana replied, stressing all students admitted to Harvard are academically qualified to be there.
Just before the trial began, Judge Burroughs denied cross-summary judgment motions, in part because of “the parties’ heavy reliance on statistical evidence and expert testimony.” Each side is expected to have experts testify as to whether the school discriminates against Asian-American applicants.
Students for Fair Admissions is represented by Adam K. Mortara, J. Scott McBride, John M. Hughes, Katherine L.I. Hacker and Krista J. Perry of Bartlit Beck Herman Palenchar & Scott LLP, William S. Consovoy, Thomas R. McCarthy, Michael H. Park, John Michael Connolly and Patrick Strawbridge of Consovoy McCarthy Park PLLC, and Paul M. Sanford of Burns & Levinson LLP.
Harvard is represented by Seth P. Waxman, Paul R.Q. Wolfson, Daniel Winik, Debo P. Adegbile, William F. Lee, Felicia H. Ellsworth, Andrew S. Dulberg, Elizabeth C. Mooney and Danielle Conley of WilmerHale.
The case is Students for Fair Admissions v. President and Fellows of Harvard College, case number 1:14-cv-14176, in the U.S. District Court for the District of Massachusetts.
--Editing by Dipti Coorg.
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