Harvard Officials Testify They Don't Use Racial Quotas
Law360, Boston (October 18, 2018, 7:46 PM EDT) -- An applicant's race can factor into admission to Harvard University, but the Ivy League school has never used "quotas" or "floors" in its bid to achieve a diverse campus, admissions officials testified Thursday on the fourth day of a bench trial in a case accusing the school of discriminating against Asian-Americans.
Defending its admissions process against a lawsuit filed by the anti-affirmative action group Students for Fair Admissions, the university's dean of admissions and an admissions officer both denied using any sort of fixed figure to balance racial or ethnic scales on the Cambridge, Massachusetts campus. The dean, William Fitzsimmons, also testified that Harvard's admissions policy is the same now as it was in 1990, when the Office for Civil Rights found the school did not discriminate against Asian-American applicants as the current lawsuit alleges
"Applicants are chosen on the strength of their credentials, but once they are deemed academically admissible, other strong qualities are considered that would potentially contribute to the educational experience at Harvard for all students," Fitzsimmons said, reading from the Office for Civil Rights report as he was questioned by William F. Lee of WilmerHale, a lawyer for the school.
"Have you ever used quotas?" Lee asked.
"Never," Fitzsimmons replied.
"Have you ever used floors?" the attorney asked, referring to a minimum number of students from a particular race or ethnic background.
"Never," was again the answer.
Admissions officer Chris Looby echoed the sentiments of his boss when he took the stand, saying race is never used as a negative factor when considering whether to admit a candidate.
Asked whether he had ever been instructed to admit a target number of a particular group, he said, "absolutely not, we don't work with targets."
Students for Fair Admissions filed the 2014 suit — which is expected to wind up before the U.S, Supreme Court and may have a wide-reaching effect on college admissions — claiming Harvard's race-conscious admissions policy puts Asian-American applicants at a disadvantage.
During an often contentious examination by Adam K. Mortara of Bartlit Beck Herman Palenchar & Scott LLP, a lawyer for the anti-affirmative action group, Looby described the role race can play in the admissions process, characterizing it as a tiebreaker of sorts than can work in a positive way for a successful student.
"We'd be looking at many, many very qualified applicants and it may be that for a particular applicant, [their race] winds up being a tip that pushes him or her into the admitted applicant pool," he said.
Mortara repeatedly pressed Looby on answers he gave and whether they jibed with his deposition testimony from more than a year ago. Looby also acknowledged the school did not provide any written guidance on how race should be used in the admissions process.
"Do you have some idea that there are considerable legal boundaries with what can be done with race in college admissions?" Mortara asked, getting an affirmative answer. "You didn't think it was odd there was no written guidance on how to use race?"
"I didn't think it was odd because, while it wasn't written, it was certainly a topic discussed at great length in person," Looby replied.
Erica Bever, a senior admissions officer previously with the school's Office of Institutional Research, was asked about an internal analysis she worked on looking at data from the Harvard classes of 2009 through 2016. The report showed that recruited athletes get the biggest boost. A distant second and third on the list are legacies — applicants who have family ties to Harvard — and those who score well on the school's subjective "personal rating."
Students for Fair Admissions argues that Asian-Americans score lower on the personal rating than their white counterparts despite outperforming them in other areas, and that the only explanation for this is race.
The Office of Institutional Research analysis showed a negative effect of being Asian on an applicant's chances of being admitted to the university. Bever was shown a memo she wrote cautioning other Harvard officials that drawing attention to the fact that the school was giving a positive benefit to low-income applicants might also spotlight "the more controversial findings" around Asians, who have been the subject of past discrimination allegations and complaints related to the school's admissions policy.
It would also highlight the "expected results" that showed varsity athletes and legacies have a much better chance of getting in, the memo displayed in the Boston courtroom read.
Testimony will continue Friday before U.S. District Judge Allison D. Burroughs, and the trial is slated to last three weeks. The case is expected to turn on conflicting interpretations of the data. During Thursday's questioning, Lee walked Fitzsimmons through numerous years in the past decade-plus during which Harvard's incoming class admitted a higher percentage of Asian applicants as compared to white applicants.
During the first week of testimony, Students for Fair Admissions has pointed to Harvard's practice of sending recruitment letters to African-American or Hispanic students with SAT scores of around 1100, while Asian students only receive recruitment letters if their scores are about 200 points higher, as clear racial discrimination.
Fitzsimmons has disagreed, saying it's about "breaking the cycle" and getting more students from different backgrounds, including white students from geographic areas that do not typically send many to Harvard. A diverse campus, Harvard argues, benefits all students.
Although the case has been filed on behalf of rejected applicants, Students for Fair Admissions is not expected to submit any applications from those Harvard turned away or call them as witnesses.
"You're not going to see a plaintiff, you're not going to see a plaintiff's application, you're not going to see a plaintiff's resume, you're not going to hear a word from them. Zero," Lee told reporters outside the courtroom Thursday. "I think this is the first time in 42 years of practice where the plaintiff doesn't get on the stand to tell you what their grievance is."
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.
Defending its admissions process against a lawsuit filed by the anti-affirmative action group Students for Fair Admissions, the university's dean of admissions and an admissions officer both denied using any sort of fixed figure to balance racial or ethnic scales on the Cambridge, Massachusetts campus. The dean, William Fitzsimmons, also testified that Harvard's admissions policy is the same now as it was in 1990, when the Office for Civil Rights found the school did not discriminate against Asian-American applicants as the current lawsuit alleges
"Applicants are chosen on the strength of their credentials, but once they are deemed academically admissible, other strong qualities are considered that would potentially contribute to the educational experience at Harvard for all students," Fitzsimmons said, reading from the Office for Civil Rights report as he was questioned by William F. Lee of WilmerHale, a lawyer for the school.
"Have you ever used quotas?" Lee asked.
"Never," Fitzsimmons replied.
"Have you ever used floors?" the attorney asked, referring to a minimum number of students from a particular race or ethnic background.
"Never," was again the answer.
Admissions officer Chris Looby echoed the sentiments of his boss when he took the stand, saying race is never used as a negative factor when considering whether to admit a candidate.
Asked whether he had ever been instructed to admit a target number of a particular group, he said, "absolutely not, we don't work with targets."
Students for Fair Admissions filed the 2014 suit — which is expected to wind up before the U.S, Supreme Court and may have a wide-reaching effect on college admissions — claiming Harvard's race-conscious admissions policy puts Asian-American applicants at a disadvantage.
During an often contentious examination by Adam K. Mortara of Bartlit Beck Herman Palenchar & Scott LLP, a lawyer for the anti-affirmative action group, Looby described the role race can play in the admissions process, characterizing it as a tiebreaker of sorts than can work in a positive way for a successful student.
"We'd be looking at many, many very qualified applicants and it may be that for a particular applicant, [their race] winds up being a tip that pushes him or her into the admitted applicant pool," he said.
Mortara repeatedly pressed Looby on answers he gave and whether they jibed with his deposition testimony from more than a year ago. Looby also acknowledged the school did not provide any written guidance on how race should be used in the admissions process.
"Do you have some idea that there are considerable legal boundaries with what can be done with race in college admissions?" Mortara asked, getting an affirmative answer. "You didn't think it was odd there was no written guidance on how to use race?"
"I didn't think it was odd because, while it wasn't written, it was certainly a topic discussed at great length in person," Looby replied.
Erica Bever, a senior admissions officer previously with the school's Office of Institutional Research, was asked about an internal analysis she worked on looking at data from the Harvard classes of 2009 through 2016. The report showed that recruited athletes get the biggest boost. A distant second and third on the list are legacies — applicants who have family ties to Harvard — and those who score well on the school's subjective "personal rating."
Students for Fair Admissions argues that Asian-Americans score lower on the personal rating than their white counterparts despite outperforming them in other areas, and that the only explanation for this is race.
The Office of Institutional Research analysis showed a negative effect of being Asian on an applicant's chances of being admitted to the university. Bever was shown a memo she wrote cautioning other Harvard officials that drawing attention to the fact that the school was giving a positive benefit to low-income applicants might also spotlight "the more controversial findings" around Asians, who have been the subject of past discrimination allegations and complaints related to the school's admissions policy.
It would also highlight the "expected results" that showed varsity athletes and legacies have a much better chance of getting in, the memo displayed in the Boston courtroom read.
Testimony will continue Friday before U.S. District Judge Allison D. Burroughs, and the trial is slated to last three weeks. The case is expected to turn on conflicting interpretations of the data. During Thursday's questioning, Lee walked Fitzsimmons through numerous years in the past decade-plus during which Harvard's incoming class admitted a higher percentage of Asian applicants as compared to white applicants.
During the first week of testimony, Students for Fair Admissions has pointed to Harvard's practice of sending recruitment letters to African-American or Hispanic students with SAT scores of around 1100, while Asian students only receive recruitment letters if their scores are about 200 points higher, as clear racial discrimination.
Fitzsimmons has disagreed, saying it's about "breaking the cycle" and getting more students from different backgrounds, including white students from geographic areas that do not typically send many to Harvard. A diverse campus, Harvard argues, benefits all students.
Although the case has been filed on behalf of rejected applicants, Students for Fair Admissions is not expected to submit any applications from those Harvard turned away or call them as witnesses.
"You're not going to see a plaintiff, you're not going to see a plaintiff's application, you're not going to see a plaintiff's resume, you're not going to hear a word from them. Zero," Lee told reporters outside the courtroom Thursday. "I think this is the first time in 42 years of practice where the plaintiff doesn't get on the stand to tell you what their grievance is."
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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