Harvard’s Thrilling—and Pyrrhic—Affirmative Action Victory

Harvard’s Thrilling—and Pyrrhic—Affirmative Action Victory

Harvard’s Thrilling—and Pyrrhic—Affirmative Action Victory

Judge Allison Burroughs’s ruling is a sublime defense of affirmative action. It also erases the legitimate concerns of Asian American students.


Affirmative action lives—for another day at least. After a lengthy trial, US District Judge Allison D. Burroughs issued an important ruling yesterday that preserves the ability of colleges and universities to use race as one factor among many that they can consider when building a class. She did this by affirming Harvard University’s admissions process.

Harvard was nominally challenged by a group of Asian American students, calling themselves the Students for Fair Admissions (SFFA), who alleged that Harvard’s use of affirmative action discriminated against Asian Americans seeking admission to the school. But those students were, in fact, treated as pawns in a larger game. SFFA was organized by Ed Blum, a conservative legal gadfly who has made it his life’s work to end affirmative action. Ed Blum is not Asian American. The conservative movement against affirmative action that Blum advances does not care about Asian Americans. Students with legitimate concerns about Harvard’s admissions process allowed their case to be co-opted by a conservative hell bent on restoring white privilege to the admissions process.

That’s why this victory for affirmative action is likely to be short-lived. For Blum and the other members of his conservative support group, this trial was always merely a prologue for the fight they really want to have at the Supreme Court. Now that Judge Burroughs has issued her ruling, Blum can appeal. The US Court of Appeals for the First Circuit is likely to affirm this ruling, which will allow Blum to appeal to the Supreme Court. Waiting for him there will be five justices likely eager to strike down affirmative action once and for all.

Judge Burroughs was clearly thinking about the impending Supreme Court challenge throughout her opinion. Her ruling is sublime. It is one of the best legal defenses of affirmative action you are likely to read. Burroughs nails the key litmus tests that affirmative action has operated under since 2003 (that’s when affirmative action was narrowly upheld in a case called Grutter v. Bollinger). She establishes that Harvard University has a compelling interest in promoting diversity; she explains, statistically, how Harvard’s admission processes is the most “narrowly tailored” way for it to achieve its compelling goal; and she painstaking goes through all of the “race neutral” options suggested by SFFA and explains how they wouldn’t produce a class as diverse as Harvard wants. Her opinion is a fantastic explanation of why affirmative action, while controversial to some, should be constitutional to all.

The conservative justices on the Supreme Court will not give a damn. The conservative movement does not think “diversity” is a good worth fighting for. You can tell that their problem is with the goals of affirmative action, not the means, by the way they prosecuted this case. Blum and his fellow conservatives decided to make this case about affirmative action, instead of about Harvard University and the way its admissions policies affect Asian American applicants. And that is a shame, because while affirmative action as applied by Harvard is certainly constitutional, the university’s fairness to Asian American applicants leaves a lot to be desired.

An internal Harvard study, made public during the trial, suggested that if Harvard looked only at “academic” factors, Asian American students would make up 43 percent of its class, not the 20 percent representation they enjoy now. Furthermore, a different study found that 43 percent of white students at Harvard were actually legacies, athletes, or kids from families who donated money to the school.

You’ve got to have some serious racial hang-ups to read those numbers and conclude that black and brown kids are why your kid didn’t get into school. Maybe call your friend, Felicity Huffman, and express your concerns with her behavior before suing Harvard over affirmative action next time?

As we’ve seen from the Varsity Blues scandal, a lot of rich people don’t actually want any kind of “meritocracy” when it comes to college admissions. They just want their advantages—as opposed to somebody else’s—to be baked into the system. Trust me, Ed Blum and the conservatives are not going for an “academics only” admissions policy that would more than double the Asian American representation at Harvard or kick out all the mediocre white kids who have important daddies.

Over 35,000 kids applied to Harvard in 2019, for around 2,000 spots. Almost all of them are intellectually deserving in some fashion. Harvard has to be discriminating in one way or another. This fight should be over how Harvard (and all colleges and universities) makes difficult decisions between equally outstanding students, not over whether Harvard is allowed to consider diversity as one factor among many.

What the trial showed is that Harvard discriminates against Asian American students in two significant ways. The first is via geography. The initial sorting that Harvard does with its massive applicant pool is to place students into “dockets” based on the geographical region of their high school.

This sort might seem benign, until you remember that Asian Americans (and minorities in general) are not spread evenly throughout the country. Minorities are not even spread evenly throughout a particular state. If you are a high-achieving Asian American student applying out of California, you are competing within your “docket” with a lot of other high-achieving Asian American kids. If you are applying out of Missouri, not so much. For what it’s worth, I believe that this kind of geographic discrimination helped my Harvard application way more than my race. I grew up primarily on Long Island, but, because of my parents’ divorce, I finished my last year of high school in Indiana. I’m sure my test scores, grades, and general cosmopolitan readiness shined out in my new Midwestern “docket” much more brightly. Had I been applying out of Long Island, I might have gotten a dreaded “seems like Yale material” in my Harvard admissions file.

Judge Burroughs did not address this geographic discrimination in her ruling, and why would she? It’s not like conservatives want to end geographic advantages in college admissions, because that discrimination generally benefits white kids. In fact, one of the SFFA’s suggestions to the court was that Harvard enhance this kind of geographic discrimination by instituting “placed-based quotas,” like admitting valedictorians from every high school. How does admitting the valedictorian from every high school in, say, Nebraska help the Asian American students SFFA allegedly represents get into Harvard? It doesn’t, but the conservatives don’t actually care about helping Asian American students.

The other way it looks like Harvard discriminates against Asian American applicants did get a little judicial time. Harvard assigns a “school support rating” to a student’s application as it winds its way through the process. It’s basically a measure of the strength of a student’s recommendation letters from teachers and guidance counselors.

The court found that Asian American students scored slightly lower than white students on this metric. The difference was small. But, when juxtaposed against the fact that the data set of Asian American students performed comparatively better than white students in terms of academics and extracurriculars, what gives? Shouldn’t their teachers rate academically successful Asian American students comparatively better than teachers rate white students who get worse grades?

The court waved it away:

[T]he Court views Harvard admissions officer bias as an unlikely explanation for the disparity in school support ratings and concludes that race-related variance in the school support ratings result from some combination of the other potential causes, all of which are beyond Harvard’s control. Further, when considering regression analyses, because school support ratings can be included in admissions outcome models, any racial effect that impacts admissions decisions through the school support ratings can be controlled for.

What? All of the “potential causes” for this kind of inexplicable variance are bad and reek of implicit bias. Harvard is probably just codifying racial stereotypes that these students, and this community, are constantly fighting against—but, apparently, it’s fine because it’s not Harvard’s fault.

Still, this wasn’t the hill that conservatives prosecuting the case against Harvard wanted to die on, because pointing out factors that benefit white kids is not their goal. And it’s not the hill the judge wanted to die on, because, on appeal, this issue is not important to the affirmative action legal battle.

All conservatives wanted to do in this case was to argue that black and Hispanic students perform worse than Asian American students solely based on test scores and GPAs. They wanted to blame black and brown students for stealing spots from Asian American students, while ignoring the mediocre white elephant in the room. Then they wanted to say “abracadabra, affirmative action is bad,” instead of coming up with an actual solution for an admissions process that promotes diversity, including Asian American diversity.

This record shows that Asian American students who apply to top colleges do have a problem. But that problem is not affirmative action. They have legitimate concerns with Harvard admissions, but by letting movement conservatives speak for them, the students behind the SFFA case let their concerns be erased and replaced by white people problems.

Affirmative action is, at core, a way to enhance diversity. The conservatives who are against affirmative action are also the people who do not appreciate the joys and benefits of living in a diverse and pluralistic society. Unless you are a white male, you cannot hook up with these people and come out ahead. They will never be in it for you, they are never going to bat for you.

This trial shows that if you lie down with dogs, you’re gonna wake up with fleas.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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