Harvard’s lawyer Seth Waxman, who served as Solicitor General during President Clinton’s second term, is such a talented advocate that his striking inability to explain away Harvard’s admissions practices ought to seal Harvard’s doom.
SFFA compellingly argues that the so-called “personal rating”—which is actually an admissions officer’s impersonal assessment of an applicant’s personal qualities based on the applicant’s cold file—is a means by which Harvard masks its discrimination against Asian-American applicants. As it happens, African-American applicants consistently get the best personal ratings, while Asian-American applicants consistently get the worst ratings. That pattern does not exist in the ratings provided by in-person alumni interviewers. Even the district court that ruled against SFFA found “a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers.”
When Justice Alito asked Waxman to explain the personal ratings that Asian-American applicants receive, Waxman spun in circles for several minutes: The “numerical disparity” on the personal rating was “slight.” The “only model that can be created to figure out what was going into the personal rating” couldn’t include all the relevant data. The personal rating is “simply a number” that is assigned by a first reader “just as a matter of triage.” (See transcript 54-60.)
Chief Justice Roberts asked Waxman about this academic decile chart, which shows that an African American in the fourth-lowest academic decile (that is, in the 30% to 39% range) has a higher chance of being admitted than an Asian American in the top decile.
Waxman responded that the academic index is based only on “high school grades and test scores” and that Harvard “doesn’t even use” the academic index as a metric. (Transcript 64-65.) But Harvard obviously does give heavy weight to high-school grades and test scores, so Waxman’s response provides no answer to the stark disparity that the chart reveals.
As Waxman acknowledged, the district court found that race was determinative for a full 45% of African-American and Hispanic applicants admitted to Harvard—i.e., that they would not have been admitted without racial preferences. (Transcript 83:8-11; see SFFA lawyer at 13:15-17.) In a zero-sum system, those admissions operated to the disadvantage of some Asian-American applicants.
The oral argument did not address Harvard’s continual monitoring of the racial composition of its admittees, which, contra the district court’s finding, seems explicable only as a means to ensure racial balancing. Waxman’s brief for Harvard unpersuasively contended that the monitoring was done to “identify anomalies in the representation of students with certain characteristics, including race”—as if the concept of “anomalies” did not presuppose some sort of racial balancing.