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In The Harvard Affirmative-Action Lawsuit, No One Wins

Boston's Moakley Courthouse, where the SFFA v. Harvard trial was held. (Jesse Costa/WBUR)MoreCloseclosemore
Boston's Moakley Courthouse, where the SFFA v. Harvard trial was held. (Jesse Costa/WBUR)

The arguments in federal court are over, but it could be months before we know the result of Students for Fair Admissions (SFFA) v. Harvard, the lawsuit alleging that Harvard discriminates against Asian-American applicants. The losing party will likely appeal. It’s possible, maybe even probable, that the case will land in the U.S. Supreme Court.

Eventually, after what could be years of litigation, one of the parties will prevail. But really this lawsuit will have no winners. The case isn’t really a good-faith challenge to affirmative action. It’s a competition between two false, self-serving narratives.

SFFA, the creation of professional litigant Edward Blum, has hijacked history. In their pretrial filings and in courtroom arguments, they have repeatedly implied that Asians are the new Jews.

Indeed, the most objectionable college admissions practices did evolve, in part, from attempts to suppress Jewish enrollment at elite American universities. In the 1920s, admission to Harvard was meritocratic: Performance on a single exam determined an applicant’s fate. As U.C. Berkeley professor Jerome Karabel described in "The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton," when Harvard deemed too many Jews to have aced the exam, the college introduced fudge factors to exclude them—including “character,” “leadership,” athletic prowess and alumni parentage. Later, Harvard and its rivals moved to straight Jewish quotas.

The conscious aim of these policies was discriminatory and exclusionary. Karabel writes that Abbott Lawrence Lowell, the Harvard president behind those measures, once asked his admissions officers to admit only those “Hebrews… possessed of extraordinary intellectual capacity together with character above criticism,” and warned that the “race feeling” and self-segregation of Jewish students was sparking an anti-Semitic backlash on campus.

Today, there is compelling evidence that Harvard’s “holistic” admissions practices, which still consider a wide range of an applicant’s characteristics and qualifications other than test scores, have had the effect of suppressing Asian enrollment. SFFA’s filings suggest that Harvard admissions officers systematically underrated Asian-American applicants on vague character traits such as personality, courage and kindness. This is deeply troubling.

But SFFA offered no evidence that Harvard’s intent was motivated by the same urge to exclude, as seen in Lowell’s writings from a century ago. Moreover, Blum — the man behind this suit — has no historical connection to the Asian-American community. One feels palpably that the anonymous plaintiffs from that community are being used as a tool in an ideological battle that has nothing to do with their well-being.

Claiming racism may make for good headlines, but the analogy between Asian-American applicants today and Jews in the early twentieth century is grossly misleading, as professor Karabel himself has argued.

At the same time, Harvard is perpetuating its own false narrative — that its approach to admissions is the best, even the only, way to improve diversity and correct for past injustices. To the contrary, Harvard has rejected a number of procedures that would improve diversity — including socioeconomic diversity — without relying explicitly on race.

There’s a reasonable and a vital debate to be had here. It’s a shame that neither the judge nor the public will hear it.

Some, such as increasing preferences for disadvantaged students and broadening the school’s financial aid programs, would be costly. David Card, an economist expert for Harvard, estimated that those changes could increase Harvard’s spending by about $62 million a year. But Harvard has an endowment in excess of $37 billion, and its own officials have said that the school could handle the cost of providing financial aid for more economically disadvantaged students.

Harvard disputes the potential benefits of other effectively costless practices such as increasing recruitment, admitting more community college transfer students and, based on a short experiment, ending early admissions.

Whether Judge Allison Burroughs buys into this defense will go a long way to deciding the lawsuit. But Harvard’s credibility is undermined most profoundly by its adherence to the practice of giving preference to the relatives of alumni or of donors. Between 2014 and 2019, over 33 percent of applicants who had at least one alumni parent earned admission to the college, compared to a baseline success rate between five and six percent.

Legacy admits are disproportionately wealthy — more than three-quarters do not apply for financial aid — and white. In his deposition, Harvard Dean of Admissions and Financial Aid William Fitzsimmons said that providing legacy preferences is “essential to Harvard’s well-being.” But he cited no empirical support for this proposition. It’s hard to imagine that there is any, since studies suggest that legacy admissions doesn’t lead to a notable drop in spending. Wouldn’t a diverse class of first-generation Harvard alumni tend to be every bit as generous to their alma mater as are second- and third-generation graduates?

Certainly no justification could be offered for what is probably Harvard’s grossest practice: the Z-list, a system of deferred admissions used to admit applicants — many the children of wealthy donors — after one year off. Harvard admits approximately 60 students each year through this system. Over a six-year period, approximately 70 percent of these admitted students were white and 46.5 percent were legacies, while only 1.2 percent were disadvantaged. These practices more than compromise Harvard’s credibility.

There’s a reasonable and a vital debate to be had here. It’s a shame that neither the judge nor the public will hear it because of the misleading narratives presented by the two parties in court.

The claim that admissions decisions should be based mainly on merit may be controversial, but it’s at least worth considering. It’s also perfectly respectable to argue that admissions competitions should depart from more “objective” criteria, like standardized tests, to increase diversity and compensate for past injustices. But no one could seriously contend that that “holistic admissions” system should work to the benefit of the children of Ivy League graduates, who are already disproportionately well off.

And yet Harvard steadfastly defends its entire admissions system, with all its built-in privileges for the privileged, as essential to preserving diversity.

This is, in part, an inevitable consequence of litigation. By their nature, lawsuits lead the parties to tell exaggerated stories about themselves and about their adversaries. Harvard’s intent is not racist. At the same time, its compromised process isn’t the only imaginable alternative to a pure meritocratic system. To be sure, no admissions system can be perfect. But socioeconomic diversity could be greatly increased without significantly compromising the college’s academic standards.

Doing so would require Harvard and other elite colleges to be transparent about their practices — something they have been reluctant to do outside of a courtroom. They would have to consider abolishing practices like legacy preferences as vestiges of a racist and unequal past.

And this case should leave the admissions office, and the public, with many more questions to ask. Do alumni interviews add anything to admissions, or do they just allow prejudice to slip in through the back door? Are elite colleges really doing all they can to train and recruit underrepresented minorities? If Harvard and schools like it represent a almost-magical tool for social and economic uplift, why not just make admissions a random selection among highly-qualified applicants?

The answers to these questions may not be clear-cut, but we ought to be asking them. That, at least, would start an honest dialogue about the ethical and civic responsibilities of elite colleges — one that we’ve been putting off for too long.

Evan Mandery is a writer and professor at the John Jay College of Criminal Justice. He graduated from Harvard College and Harvard Law School.

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