Earlier today, the Department of Justice filed a 37-page “statement of interest” opposing Harvard’s efforts to dismiss racial-bias claims brought by a coalition of Asian-American students. It makes for disturbing reading.
Relying on deposition testimony and other evidence in the record, the DOJ makes a few key claims. First, it notes (as was widely reported) that Harvard used a vague and ambiguous “personal rating” of applicants to drive down the number of Asian-American students:
[D]irect and circumstantial evidence indicates that a driving factor in Harvard’s admissions process, the vague and elusory “personal rating,” may be infected with racial bias against Asian Americans. Based solely on a cold review of the applicant’s file, Harvard uses the personal rating to score each applicant on “subjective” factors such as a “positive personality,” “likability,” and being a “good person” with “human qualities” . . . Harvard admits that, on average, it scores Asian-American applicants lower on the personal rating than white applicants. Yet when an internal Harvard report pointed out that the personal rating may be infused with racial bias and sought authorization to study the issue further, Harvard buried it. On this record, a fact finder could reasonably conclude that the personal rating at worst reflects racial stereotypes against Asian Americans and at best encompasses an intentional and unexplained use of race.
But other claims have received less attention, yet are also damaging. For example, racial considerations pervade the Harvard admissions process:
Harvard admits that it voluntarily uses race in all three phases of its admissions process: when its admissions officers assign each applicant an overall rating, when its admissions subcommittees decide whether to recommend an applicant for admission, and when its full admissions committee makes final admissions decisions. But Harvard identifies no meaningful criteria to cabin its voluntary use of race in any of these phases.
And Harvard allegedly hasn’t even seriously considered race-neutral means of achieving its diversity goals:
Harvard has been using race to make admissions decisions for more than 45 years — but substantial record evidence demonstrates that, even now, it has never engaged in “serious, good faith consideration of workable race-neutral alternatives.” Instead, Harvard attempts to have it both ways. It contends that its voluntary use of race is necessary to capture “the educational benefits of diversity,” but disclaims any ability either to “measure” the “level of racial diversity that Harvard thinks is needed in order to obtain” those benefits or to identify “what form [of] evidence” would justify ending its voluntary use of race.”
Let’s put this in plain language. For generations, Harvard has acted as if federal laws prohibiting racial discrimination in federally funded higher education in fact empowered it to explicitly use race as a vital component of each phase of the admissions process. Furthermore, it used race as such a blunt instrument that it allowed race to functionally serve as a proxy even for personality.
As a former member of an Ivy League law-school admissions committee, I thought I was jaded and cynical. I thought I’d seen all the ways that race influences the admissions process. But Harvard’s transparently obvious effort to cap the percentage of Asian-American students stunned even me. As Asian students struggled mightily to achieve the highest scores and to achieve extraordinary things outside the classroom, Harvard raised the bar — for them.
And it’s important to remember that arguments about wealth and privilege ring rather hollow when applied to a community that consists of large number of immigrants or first-generation Americans. Yes, there are wealthy and powerful Asian applicants, but there are also applicants who have battled through language barriers and radical cultural adjustments to achieve at the highest levels. Are we seriously to believe that they should have to achieve more academically than a black or white native-born doctor’s son to gain admission?
Federal law should be enforced as written. There are ways of closing achievement gaps that don’t involve racial discrimination against innocent, hard-working young people. The Sessions Justice Department is doing the right thing by filing its brief. Such blatant discrimination must be deemed illegal, or federal law will no longer mean what it so plainly says.