Race-Blind Admissions Harm Students, Harvard Dean Testifies
Law360, Boston (October 16, 2018, 5:32 PM EDT) -- Harvard's longtime dean of admissions testified that a study by the university's own expert shows eliminating race from the student application process would result in more Asian-American students being admitted — but would lessen the quality of their education — as testimony continued Tuesday in the closely watched Boston bench trial.
A group called Students for Fair Admissions is suing the Ivy League school on behalf of rejected Asian-American applicants who say they face a "penalty" due to their ethnicity and Harvard's preference to have a more diverse student body. William Fitzsimmons, Harvard's dean of admissions and financial aid, was cross-examined about a study done by a Harvard expert who found that if the school stopped considering race as factor in admissions, the number of African-American and Hispanic students in the class of 2019 would dip and the number of white and Asian American students would increase.
SFFA lawyer John M Hughes of Bartlit Beck Herman Palenchar & Scott LLP asked Fitzsimmons whether, based on the numbers showing the percentage of Asian-American students in the hypothetical class jumped from 24 to 27 percent, Harvard's race-conscious admission procedure benefits Asian applicants.
"Not in the number," Fitzsimmons acknowledged, quickly adding, "except that I think the education the Asian American students get as a result of being at Harvard and being at a place with great ethnic and racial diversity is substantial."
SFFA, led by anti-affirmative action advocate Edward Blum, has argued that Asian-American applicants outperform their white counterparts academically and in terms of extracurriculars. They do not fare as well, however, on the highly subjective "personal rating" given by one of Harvard's 40 admissions officers who examine each applicant and judge his or her personality. The only explanation for this, SFFA argues, is race.
Harvard admits it uses race as a "plus-factor" and has touted the benefits of a diverse campus but insists race is never held against an applicant. The case is widely expected to wind up before the U.S. Supreme Court and has drawn interest from the Trump administration, which backed the rejected applicants.
When Fitzsimmons was asked about the apparent "tip" given to black or Hispanic applicants, he said their race "certainly made a difference" in their admission, but stressed that numerous factors go into the admissions decision and these students are highly qualified in many ways.
SFFA is also trying to show that Harvard has known that Asian-American applicants face an uphill climb compared to their peers of different races for a long time but has taken no action. Hughes questioned Fitzsimmons about a 1990 report by the Office of Civil rights, which ultimately found Harvard did not violate the Civil Rights Act but did show Asian-American applicants scored lower than white applicants on the personal rating.
Fitzsimmons, who was at Harvard at the time, downplayed the variance.
"It's a relatively small difference in the greater scheme of things considering the personal rating is one of many factors that go into it," he testified, noting that his office took the OCR report "very, very seriously."
The OCR report also showed biases and stereotypes among Harvard admissions officers, who frequently characterized Asian-American applicants in similar terms such as "quiet," "math-oriented," and "wants to be a doctor," which SFFA said had the effect of making all Asian applicants seem similar.
"Do you think these stereotypical comments are consistent with using race along Harvard's guidelines?" Hughes asked.
"We do not endorse, we abhor stereotypical comments," Fitzsimmons replied. "This is not part of our process, this is not who I am and not who our admissions committee members are."
Fitzsimmons said he "doubted" anyone currently working in admissions uses race in the process in a way similar to what the OCR report found nearly 30 years ago.
Outside the fifth-floor courtroom, lead Harvard attorney William F. Lee of WilmerHale cautioned against reading too deeply into a handful of comments selected by the plaintiffs.
"If you look at 110,000 files you might find, with any one of us, a comment or two that might not be the way you'd say it with the benefit of hindsight," Lee told reporters, referring to the volume of the OCR report.
Lee said that when his side has a chance to question Fitzsimmons "we will fill in an awful lot of the details" and said that since the OCR report the Harvard admissions process was held up by the Supreme Court as a model for other schools, in the 2003 decision in Grutter v. Bollinger
, which affirmed affirmative action policies for the University of Michigan law school.
During Tuesday's cross-examination, Fitzsimmons repeatedly suggested Hughes was oversimplifying a very complicated Harvard admissions process that involves numerous steps, people and considerations on the merits of every candidate. Hughes focused considerable time on the "personal rating," noting as his colleague, Adam K. Mortara, did in opening statements, that the guidelines provided for that score are different than the academic rating, which is loosely tied to easily demarcated numbers like SAT scores or grade point averages.
More white applicants, according to the OCR study, received higher personal scores. Hughes asked Fitzsimmons why that was the case.
"This is speculation, but the strength of the teacher and counselor recommendation for whites is somewhat stronger than those for Asian-Americans," Fitzsimmons said. "That could be one factor."
Asked how he knows that to be true, Fitzsimmons said, "We simply know that ... we are in the business."
The interpretation of data is expected to be a foundation for much of the argument during the three-week trial, which continues Wednesday morning with more cross-examination of Fitzsimmons. Harvard has said that the study used by Hughes to cross-examine Fitzsimmons about the racial tip given to some groups ultimately found no evidence of discrimination, and it has criticized SFFA experts for misinterpreting the numbers.
U.S. District Judge Allison D. Burroughs noted the differences in how the data is read when she denied both sides' summary judgment motions just before the start of the trial.
While the number of attendees cramming the four rows of the courtroom gallery dipped from yesterday, the second day of the trial still drew considerable public interest.
The proceedings were interrupted for more than a hour when a fire alarm sounded in the Boston courthouse. The alarm was still ringing after people were let back into the building, and an apparently frustrated Judge Burroughs sat silently on the bench for a few moments before the noise finally subsided and testimony resumed.
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 Alyssa Miller.
A group called Students for Fair Admissions is suing the Ivy League school on behalf of rejected Asian-American applicants who say they face a "penalty" due to their ethnicity and Harvard's preference to have a more diverse student body. William Fitzsimmons, Harvard's dean of admissions and financial aid, was cross-examined about a study done by a Harvard expert who found that if the school stopped considering race as factor in admissions, the number of African-American and Hispanic students in the class of 2019 would dip and the number of white and Asian American students would increase.
SFFA lawyer John M Hughes of Bartlit Beck Herman Palenchar & Scott LLP asked Fitzsimmons whether, based on the numbers showing the percentage of Asian-American students in the hypothetical class jumped from 24 to 27 percent, Harvard's race-conscious admission procedure benefits Asian applicants.
"Not in the number," Fitzsimmons acknowledged, quickly adding, "except that I think the education the Asian American students get as a result of being at Harvard and being at a place with great ethnic and racial diversity is substantial."
SFFA, led by anti-affirmative action advocate Edward Blum, has argued that Asian-American applicants outperform their white counterparts academically and in terms of extracurriculars. They do not fare as well, however, on the highly subjective "personal rating" given by one of Harvard's 40 admissions officers who examine each applicant and judge his or her personality. The only explanation for this, SFFA argues, is race.
Harvard admits it uses race as a "plus-factor" and has touted the benefits of a diverse campus but insists race is never held against an applicant. The case is widely expected to wind up before the U.S. Supreme Court and has drawn interest from the Trump administration, which backed the rejected applicants.
When Fitzsimmons was asked about the apparent "tip" given to black or Hispanic applicants, he said their race "certainly made a difference" in their admission, but stressed that numerous factors go into the admissions decision and these students are highly qualified in many ways.
SFFA is also trying to show that Harvard has known that Asian-American applicants face an uphill climb compared to their peers of different races for a long time but has taken no action. Hughes questioned Fitzsimmons about a 1990 report by the Office of Civil rights, which ultimately found Harvard did not violate the Civil Rights Act but did show Asian-American applicants scored lower than white applicants on the personal rating.
Fitzsimmons, who was at Harvard at the time, downplayed the variance.
"It's a relatively small difference in the greater scheme of things considering the personal rating is one of many factors that go into it," he testified, noting that his office took the OCR report "very, very seriously."
The OCR report also showed biases and stereotypes among Harvard admissions officers, who frequently characterized Asian-American applicants in similar terms such as "quiet," "math-oriented," and "wants to be a doctor," which SFFA said had the effect of making all Asian applicants seem similar.
"Do you think these stereotypical comments are consistent with using race along Harvard's guidelines?" Hughes asked.
"We do not endorse, we abhor stereotypical comments," Fitzsimmons replied. "This is not part of our process, this is not who I am and not who our admissions committee members are."
Fitzsimmons said he "doubted" anyone currently working in admissions uses race in the process in a way similar to what the OCR report found nearly 30 years ago.
Outside the fifth-floor courtroom, lead Harvard attorney William F. Lee of WilmerHale cautioned against reading too deeply into a handful of comments selected by the plaintiffs.
"If you look at 110,000 files you might find, with any one of us, a comment or two that might not be the way you'd say it with the benefit of hindsight," Lee told reporters, referring to the volume of the OCR report.
Lee said that when his side has a chance to question Fitzsimmons "we will fill in an awful lot of the details" and said that since the OCR report the Harvard admissions process was held up by the Supreme Court as a model for other schools, in the 2003 decision in Grutter v. Bollinger
, which affirmed affirmative action policies for the University of Michigan law school.During Tuesday's cross-examination, Fitzsimmons repeatedly suggested Hughes was oversimplifying a very complicated Harvard admissions process that involves numerous steps, people and considerations on the merits of every candidate. Hughes focused considerable time on the "personal rating," noting as his colleague, Adam K. Mortara, did in opening statements, that the guidelines provided for that score are different than the academic rating, which is loosely tied to easily demarcated numbers like SAT scores or grade point averages.
More white applicants, according to the OCR study, received higher personal scores. Hughes asked Fitzsimmons why that was the case.
"This is speculation, but the strength of the teacher and counselor recommendation for whites is somewhat stronger than those for Asian-Americans," Fitzsimmons said. "That could be one factor."
Asked how he knows that to be true, Fitzsimmons said, "We simply know that ... we are in the business."
The interpretation of data is expected to be a foundation for much of the argument during the three-week trial, which continues Wednesday morning with more cross-examination of Fitzsimmons. Harvard has said that the study used by Hughes to cross-examine Fitzsimmons about the racial tip given to some groups ultimately found no evidence of discrimination, and it has criticized SFFA experts for misinterpreting the numbers.
U.S. District Judge Allison D. Burroughs noted the differences in how the data is read when she denied both sides' summary judgment motions just before the start of the trial.
While the number of attendees cramming the four rows of the courtroom gallery dipped from yesterday, the second day of the trial still drew considerable public interest.
The proceedings were interrupted for more than a hour when a fire alarm sounded in the Boston courthouse. The alarm was still ringing after people were let back into the building, and an apparently frustrated Judge Burroughs sat silently on the bench for a few moments before the noise finally subsided and testimony resumed.
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 Alyssa Miller.
1 Comment
Odd. Harvard offered a pretty good education for the 320 years before they I'm;posed the race "diversity" on admissions. For the current argument to be true, Harvard would have to admit that it offered an incomplete inferior education for three centuries. The argument is clearly specious.