3 Thoughts On The Harvard Affirmative Action Verdict

by Frederick Hess: A federal judge on Tuesday ruled that Harvard University’s admissions policies do not discriminate against Asian Americans. Judge Allison Burroughs’ verdict in the closely watched affirmative action case held that Harvard’s approach, which considers race as a factor in acceptance decisions, “passes constitutional muster.”

Burroughs rejected the claim by Students for Fair Admissions (SFFA) that Harvard’s process entails illegal “racial balancing” and unconstitutionally burdens Asian-American applicants. The judge wrote that the plaintiffs did not provide “a single admissions file that reflected discriminatory animus.” She concluded, “Ensuring diversity at Harvard relies, in part, on race conscious admissions.”

There’s a lot to be said about this verdict, and plenty will be said in the coming days. For now, I’ll just offer three thoughts. First off, this decision is only a way station. While the verdict closes this stage of a lawsuit that was filed back in 2014, most observers expect that the plaintiffs will appeal the decision and that the high-profile case could ultimately be resolved by the U.S. Supreme Court.

Second, while I fully respect the judge’s decision, and understand how she could kinda, sorta squint and square it with Supreme Court precedent, I still find myself surprised at her depiction of Harvard’s practices. After all, internal documents revealed that Harvard’s interviewers and admissions staff consistently ranked Asian Americans lower on personality—with significant consequences on admissions. That seemed like pretty damning evidence of manipulation or bias. And I found Harvard’s response on this score remarkably incoherent. It was along the lines of: “We don’t penalize Asian Americans. Well, we do ‘tip’ things for some applicants, but that has no impact on other applicants. And ignore those personality scores, well, because.”

Third, it seems to me that the real scandal surfaced by the suit has pretty much flown under the radar. This has nothing specifically to do with the race-based question but instead with how internal documents cast a harsh spotlight on the shakedowns and pay-offs that seem to be a routine part of the Harvard admissions process. To pluck one example from many, in a 2013 email with the subject line “My Hero,” the former dean of the Harvard Kennedy School of Government thanked a colleague for “once again” helping to admit students with very “special” qualifications. The dean wrote, “I am simply thrilled about the folks you were able to admit. . . . [Redacted] has already committed to a building.” As the Harvard Crimson drily noted, “The public has long suspected that Harvard favors those who fund it. But blatant examples like those presented Wednesday . . . rarely if ever become public knowledge.”

If Harvard can’t be trusted to resist the siren call of legacy favoritism or pay-to-play donors, I have trouble seeing how it can be trusted to negotiate the fraught waters of racial preferences. The whole affair leaves me not only skeptical of Harvard’s ability to incorporate race in a constitutionally defensible manner, but of the propriety of Harvard’s whole expansive, expensive admissions operation.
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Frederick Hess is director of education policy studies at the American Enterprise Institute, where I study K-12 and higher education. Article shared in Forbes.com.

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