Harvard Trial Delves Into Email Warnings On Admissions Data
Law360, Boston (October 19, 2018, 10:25 PM EDT) -- Harvard officials were cautioned against trumpeting the school's admissions boost for low-income students in 2013 because doing so would call attention to more "controversial" data about whether Asian-Americans faced discrimination in the process, according to emails discussed Friday in the closely watched trial.
A university dean who formerly headed the school’s Office of Institutional Research was shown a number of emails and memos sent after her office did an analysis of factors that led to admission to the prestigious Ivy League school, which faces a claim that it discriminates against Asian-American applicants.
The numbers in the study suggest a negative correlation between being Asian and one’s chances at getting into Harvard. The university has said the internal analysis was “highly simplified” and included only a few of the hundreds of variables that go into choosing a Harvard student.
But a lawyer for Students For Fair Admissions, the anti-affirmative action group leading the suit, said none of that was conveyed by OIR head Erin Driver-Linn to Harvard’s dean of admissions.
“Instead of writing about how OIR's analysis might be inaccurate, you wrote about your concerns about the negative effects on Asian-Americans getting publicized, right?” asked Katherine Hacker of Bartlit Beck Herman Palenchar & Scott LLP. “That was a concern you had.”
Driver-Linn said on the stand she did not recall having that concern, but her deposition testimony when asked a similar question read: “I do believe it was a concern I had.”
In the 2013 email referenced by Hacker, Driver-Linn said that showing data proving Harvard’s “thumb on the scale” for low-income students would also show data indicating Asian-Americans’ negative correlation that had drawn some recent press attention, as well as the strong, but expected, preference the school gives to recruited athletes and the children of Harvard alumni.
Another email from a different faculty member agreed, “there are upsides and downsides about being public about that analysis.”
The OIR research showed the probability of getting into Harvard based on certain variables. When considering academics and nothing else, nearly half the hypothetical Harvard class would be Asian-American, the model showed. After adding in six more variables, including race and ethnicity, the number shrinks to 18 percent, according to the data. The actual number of Asian-Americans admitted between the classes of 2007 and 2016, the period analyzed in the graph, was 19 percent.
Driver-Linn said the analysis does not show Asian-American discrimination and she said in 2013 when it was compiled that the data set was limited based on the relatively few variables used to pull it together. The Ivy League schools' admissions policies had recently been taken to task in a 2012 article by a Harvard alumnus titled “The Myth of American Meritocracy,” which labeled Asian-Americans “the new Jews” in the context of getting into Ivy League schools, “a high-performing group, whose numbers could only be restricted by major deviations from an objective meritocratic standard.”
U.S. District Judge Allison D. Burroughs is presiding over the bench trial and has suggested the different interpretations of data may go a long way toward deciding the suit that many believe is bound for the U.S. Supreme Court someday. Judge Burroughs was far more active on the bench Friday, asking numerous questions, particularly about why the model including gender and ethnicity, if incomplete, so closely mirrored the racial breakdown for the actual Harvard class.
“You’re saying the model is incomplete, but it seems like whatever variables you did include were good markers because they so closely reflected the actual class,” Judge Burroughs said, later adding, “I guess I don’t understand how the actual class and the (gender and ethnicity) model are so close to each other. Is it a coincidence?”
“It’s not a coincidence, we were trying to see if we could get as close as we could,” Driver-Linn replied. “To understand the admissions process and to understand the way that these different variables as a whole may contribute to the probability of admission, they were trying to model, in a highly simplified way, how the admissions process works.”
In one of the more animated lines of questioning of the lengthy court day, Bartlit Beck attorney Adam K. Mortara, counsel for SFFA, grilled Harvard Director of Admissions Marlyn McGrath on why the school does not consider and track the religion of a candidate when that box is checked on the common application, as it does for race.
“We have done that on the advice of counsel because of Massachusetts law,” McGrath said.
“Are you suggesting to me that the reason Harvard doesn’t look at the religious persuasion of applicants is because it’s lawyers said it might be illegal?” Mortara asked.
“I would not say we ignore what we do know,” McGrath replied, saying a candidate essay stressing how religion has shaped his or her life might be considered. “We do not track or preserve the answer to (the question about a candidate’s religion).”
“You don’t even allow it to transfer into your system, it’s not just that you don’t retain it, you don’t see it,” the lawyer shot back. “How is that looking at the whole person if you don't consider something as important as religion?”
McGrath said she did not think it would be detrimental to the admissions process to not know a candidate’s religion, and, despite not having data, believes Harvard has a religiously diverse campus. She said it’s helpful to the admissions committee to know someone’s race.
“We have a practice of giving special consideration to ethnic identity,” she said, adding Harvard would be a “different college” if it went to a race-blind admissions process.
The trial enters the second of its three weeks on Monday. The first week of testimony peeled back some of the layers involved in the Harvard admissions process, including evidence that shows a strong preference given to admitting athletes and the children of alumni and donors.
On Friday, McGrath did not dispute Mortara when he said those students, the athletes and legacies, make up the lion’s share of the applicants who score an interview with a Harvard staff member in the admissions office and those who get an interview are 10 times more likely to get in when compared to the general admission rate.
The fifth-floor Boston courtroom was packed for about half of the day-long session Friday, with supporters of SFFA filling the pews and expressing their support for the lawsuit. One woman flashed a thumbs-down sign when a bar graph was shown with a negative effect for Asian descent when it comes to Harvard admissions. Several others hugged or thanked SFFA lawyers or its president, Edward Blum.
Judge Burroughs was often self-deprecating as she tried to wrap her mind around the numbers and what they show.
“Do you have any more questions about the models?” asked Harvard lawyer Felicia H. Ellsworth of WilmerHale.
“None that I’m willing to admit,” the judge replied, drawing laughter in the courtroom.
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 Orlando Lorenzo.
A university dean who formerly headed the school’s Office of Institutional Research was shown a number of emails and memos sent after her office did an analysis of factors that led to admission to the prestigious Ivy League school, which faces a claim that it discriminates against Asian-American applicants.
The numbers in the study suggest a negative correlation between being Asian and one’s chances at getting into Harvard. The university has said the internal analysis was “highly simplified” and included only a few of the hundreds of variables that go into choosing a Harvard student.
But a lawyer for Students For Fair Admissions, the anti-affirmative action group leading the suit, said none of that was conveyed by OIR head Erin Driver-Linn to Harvard’s dean of admissions.
“Instead of writing about how OIR's analysis might be inaccurate, you wrote about your concerns about the negative effects on Asian-Americans getting publicized, right?” asked Katherine Hacker of Bartlit Beck Herman Palenchar & Scott LLP. “That was a concern you had.”
Driver-Linn said on the stand she did not recall having that concern, but her deposition testimony when asked a similar question read: “I do believe it was a concern I had.”
In the 2013 email referenced by Hacker, Driver-Linn said that showing data proving Harvard’s “thumb on the scale” for low-income students would also show data indicating Asian-Americans’ negative correlation that had drawn some recent press attention, as well as the strong, but expected, preference the school gives to recruited athletes and the children of Harvard alumni.
Another email from a different faculty member agreed, “there are upsides and downsides about being public about that analysis.”
The OIR research showed the probability of getting into Harvard based on certain variables. When considering academics and nothing else, nearly half the hypothetical Harvard class would be Asian-American, the model showed. After adding in six more variables, including race and ethnicity, the number shrinks to 18 percent, according to the data. The actual number of Asian-Americans admitted between the classes of 2007 and 2016, the period analyzed in the graph, was 19 percent.
Driver-Linn said the analysis does not show Asian-American discrimination and she said in 2013 when it was compiled that the data set was limited based on the relatively few variables used to pull it together. The Ivy League schools' admissions policies had recently been taken to task in a 2012 article by a Harvard alumnus titled “The Myth of American Meritocracy,” which labeled Asian-Americans “the new Jews” in the context of getting into Ivy League schools, “a high-performing group, whose numbers could only be restricted by major deviations from an objective meritocratic standard.”
U.S. District Judge Allison D. Burroughs is presiding over the bench trial and has suggested the different interpretations of data may go a long way toward deciding the suit that many believe is bound for the U.S. Supreme Court someday. Judge Burroughs was far more active on the bench Friday, asking numerous questions, particularly about why the model including gender and ethnicity, if incomplete, so closely mirrored the racial breakdown for the actual Harvard class.
“You’re saying the model is incomplete, but it seems like whatever variables you did include were good markers because they so closely reflected the actual class,” Judge Burroughs said, later adding, “I guess I don’t understand how the actual class and the (gender and ethnicity) model are so close to each other. Is it a coincidence?”
“It’s not a coincidence, we were trying to see if we could get as close as we could,” Driver-Linn replied. “To understand the admissions process and to understand the way that these different variables as a whole may contribute to the probability of admission, they were trying to model, in a highly simplified way, how the admissions process works.”
In one of the more animated lines of questioning of the lengthy court day, Bartlit Beck attorney Adam K. Mortara, counsel for SFFA, grilled Harvard Director of Admissions Marlyn McGrath on why the school does not consider and track the religion of a candidate when that box is checked on the common application, as it does for race.
“We have done that on the advice of counsel because of Massachusetts law,” McGrath said.
“Are you suggesting to me that the reason Harvard doesn’t look at the religious persuasion of applicants is because it’s lawyers said it might be illegal?” Mortara asked.
“I would not say we ignore what we do know,” McGrath replied, saying a candidate essay stressing how religion has shaped his or her life might be considered. “We do not track or preserve the answer to (the question about a candidate’s religion).”
“You don’t even allow it to transfer into your system, it’s not just that you don’t retain it, you don’t see it,” the lawyer shot back. “How is that looking at the whole person if you don't consider something as important as religion?”
McGrath said she did not think it would be detrimental to the admissions process to not know a candidate’s religion, and, despite not having data, believes Harvard has a religiously diverse campus. She said it’s helpful to the admissions committee to know someone’s race.
“We have a practice of giving special consideration to ethnic identity,” she said, adding Harvard would be a “different college” if it went to a race-blind admissions process.
The trial enters the second of its three weeks on Monday. The first week of testimony peeled back some of the layers involved in the Harvard admissions process, including evidence that shows a strong preference given to admitting athletes and the children of alumni and donors.
On Friday, McGrath did not dispute Mortara when he said those students, the athletes and legacies, make up the lion’s share of the applicants who score an interview with a Harvard staff member in the admissions office and those who get an interview are 10 times more likely to get in when compared to the general admission rate.
The fifth-floor Boston courtroom was packed for about half of the day-long session Friday, with supporters of SFFA filling the pews and expressing their support for the lawsuit. One woman flashed a thumbs-down sign when a bar graph was shown with a negative effect for Asian descent when it comes to Harvard admissions. Several others hugged or thanked SFFA lawyers or its president, Edward Blum.
Judge Burroughs was often self-deprecating as she tried to wrap her mind around the numbers and what they show.
“Do you have any more questions about the models?” asked Harvard lawyer Felicia H. Ellsworth of WilmerHale.
“None that I’m willing to admit,” the judge replied, drawing laughter in the courtroom.
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 Orlando Lorenzo.
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