The Harvard Trial: A Double-Edged Sword for College Admissions

https://www.nytimes.com/2018/11/02/us/harvard-trial-college-admissions.html

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BOSTON — For the past three weeks, a succession of officials, students and academics have taken the witness stand in a federal trial here that has shaken the foundations of college admissions and explored what diversity means in America.

The case, which examines whether Harvard limits Asian-American applicants to make room for students of other races, has been a double-edged sword for the university, and for other elite private institutions that conduct their admissions the way Harvard does.

The trial has drawn out a deep cynicism among many Americans who believe that college admissions are meritocratic — that unlike the corporate workplace, the political battlefield, and other arenas past college, students can work hard and get a fair shot to Harvard, no matter who they are.

Court filings and testimony have revealed clear advantages for the children of Harvard alumni and faculty, donors and recruited athletes, a group that makes up about 5 percent of applicants but 30 percent of admitted students, according to court documents.

But the trial has also shed light on a school’s unwavering commitment to diversity and to enrolling underrepresented minorities, whom it views as crucial to its educational mission.

Harvard turned the case into a referendum on diversity and the future of affirmative action. It introduced witnesses that included a child of a sharecropper who went on to become the first African-American president of an Ivy League institution, and a Chinese-American daughter of a restaurant worker, who was accepted by Harvard after her counselor told her not to bother applying.

“The wolf of racial bias is at Harvard’s door and the door of this courthouse,” Bill Lee, Harvard’s lead counsel, told the court in his closing argument, invoking a phrase used by the plaintiffs in their opening statement, and turning it against them. By attacking Harvard’s race-conscious admissions process, the suggestion was, the plaintiffs were themselves discriminating.

The benefits of diversity, Mr. Lee added, “couldn’t be more on trial.”

The group suing Harvard, Students for Fair Admissions, hewed a much narrower road, saying the case was not about dismantling diverse classes or erasing students’ races from their applications, as some critics have stated. The lawsuit, they said, is about ending discrimination against a single group — Asian-Americans.

John Hughes, a lawyer for the plaintiffs, said in his closing that Harvard’s admissions practices were “not a racist conspiracy,” but that unconscious bias among “well-meaning” admissions officers was favoring certain students over Asian-Americans.

But the problem with a finding against Harvard, Mr. Lee pointed out, is that the remedy would almost certainly decrease diversity, particularly among African-American and Hispanic students.

Considering students’ socioeconomic status instead of race, as the plaintiffs are advocating, Mr. Lee said, would reduce the number of African-American and Hispanic undergraduate students by 1,000 over four years.

Mr. Lee said on Friday that in the view of the plaintiffs, “the winners are the Asian-Americans and whites, and the losers are the African-Americans and Hispanics.”

“Your honor, he could not be more wrong,” Mr. Lee added. “If that is the circumstance, we all lose, every single one of us loses.”

The case has been before a judge, Allison D. Burroughs, not a jury, and she will decide it. She said from the bench on Friday that she was expecting more briefs and perhaps another round of arguments from the lawyers, and that she might not make a decision until February.

Asked about the impact the trial has had on Harvard’s reputation, Mr. Lee said after the trial on Friday that it was “a question for others to answer.” But he said that Harvard was expecting to have “a great admissions year.”

Seth Waxman, a Harvard lawyer who shared the closing arguments with Mr. Lee, scoffed at the “bloodless statistics” presented by the plaintiffs, saying that at most, statistical modeling could prove a correlation. “It can never prove causation in the real world,” he said.

Still, several days of the trial were consumed with the statistical complexities of dueling expert reports, which came to opposite conclusions using the same admissions data on whether Harvard discriminates against Asian-Americans.

Harvard’s expert, David Card, a Berkeley economist who is a specialist in labor statistics, argued that the plaintiffs had not included key variables in their analysis and thus did not present an accurate picture of admissions.

The plaintiffs’ expert, Peter Arcidiacono, said he had left these factors out of his model because they all were strongly associated with the race of the applicant. So if they were put into the model, they would soak up the visible effects of race on admissions.

The trial sets the stage for college admissions for years to come. Virtually every selective private college in the country does admissions the way Harvard does, trying to assemble a diverse class of students while not running afoul of Supreme Court prohibitions against quotas, targets and racial balancing.

Both sides spent days laying the foundation for an appeal, and the case is widely expected to go to higher courts.

Harvard had without a doubt the most charismatic witnesses. As Mr. Lee delivered his closing on Friday, he projected the smiling faces of Harvard students who had testified at the trial onto a big screen.

Thang Diep, a Harvard senior who came from Vietnam as a child, talked about how affirming it was when a Harvard professor was the first teacher to pronounce his name correctly.

Sally Chen, also a senior, testified that a counselor at her San Francisco high school had advised students not to write about their Asian-American identity, because it was too familiar. The counselor had advised her not even to apply. She did anyway, and wrote about how being an advocate and translator for her working-class Chinese immigrant parents had shaped her view of social responsibility. She got in.

There was no testimony from rejected students. The names of the Asian-Americans represented by Students for Fair Admissions were redacted from the record, because they were worried about being harassed and reviled for their views, according to the leader of the group, Edward Blum.

Mr. Blum attended every day of the trial, sitting in the same spot in the middle of the second row. He spoke to almost no one until the last day, when he shook hands with William Fitzsimmons, the Harvard admissions dean who testified in the trial.

In the end, the plaintiffs are hoping that the case will rest on the numbers, on statistical details that might help concretize the often foggy nature of racial bias.

Harvard is hoping for a more transcendent verdict. Ruth Simmons, a former president of Brown and a sharecropper’s daughter who went on to study Proust in France, argued in the final days of the trial what such a verdict could entail.

“I would say that we are bedeviled in society by enduring schisms, schisms based on differences, political differences, cultural differences, religious differences,” Dr. Simmons said. “When we go back to our enclaves, enclaves of sameness, how are we going to get to the point where we can mediate these conflicts and have a peaceful society that advances?”