BOSTON (CN) — The First Circuit struggled Wednesday to figure out how far Harvard and other universities can go in using affirmative action to tilt the admissions process in favor of certain racial groups and against others.
“Harvard monitors the evolving composition of the class by race at every stage of the process” to produce “a class that year over year is racially balanced within a very narrow range,” Assistant Attorney General Eric Dreiband complained to the court.
The Trump administration’s Justice Department is backing a nonprofit organization that is suing Harvard for discriminating against Asian-Americans.
“No case has said the goal can be to balance against the previous year’s numbers,” argued the nonprofit’s lawyer, William Consovoy. “That’s just patently unconstitutional.”
But U.S. Circuit Judge Sandra Lynch pushed back.
“Disparate impact isn’t enough” to invalidate the admission process, she said.
Lynch, a Clinton appointee, said that “subjective criteria were used” in the Supreme Court’s landmark Bakke case, and noted that “the Supreme Court talked glowingly of Harvard’s plan at the time.”
The current lawsuit was brought by Students for Fair Admissions, a non-profit opposed to affirmative action that claims more than 20,000 members.
According to the suit, Harvard assigns each applicant a personal rating based on subjective criteria that is in fact a method of increasing acceptances for Black and Hispanic students and lowering them for Asians despite the fact that Asians score higher on academics and other factors.
A year ago, U.S. District Judge Allison Burroughs issued a 130-page opinion finding in favor of Harvard.
“The data demonstrate a statistically significant and negative relationship between Asian-American identity and the personal rating assigned by Harvard admissions officers, holding constant any reasonable set of observable characteristics,” Burroughs acknowledged.
But she went on to say that Harvard could legally discriminate against Asians under the civil rights law, which allows universities to use race as a “plus factor” in evaluating applicants as long as they don’t engage in full-scale quotas or racial balancing.
Dreiband argued that racial balancing is exactly what Harvard is doing.
“The application summary sheets used by admissions officers use race,” he said. “First readers use race, second readers use race, subcommittees use race, the Harvard admissions committee uses race, the lopping process at the end uses race. Harvard admits that the overall rating it assigns to each applicant uses race.”
Consovoy, a former clerk to Justice Clarence Thomas, piled on.
“At the beginning of the year, they set racial targets,” he said. “At the end of the process, they rebalance the class if necessary if they miss the racial targets. No Supreme Court case has said that’s permissible.”
But Harvard’s lawyer, Seth Waxman of WilmerHale in Boston, disagreed.
“Every applicant is evaluated based on the full application and every candidate is competing for every seat in the class,” he said.
Harvard’s personal ratings have a checkered history. Prior to 1920, Harvard admitted students based on an exam, but it introduced the personal rating as a covert way to limit the number of Jews at the school.
The plaintiffs claim the personal ratings today contain “implicit bias” against Asians. But the judges were troubled by what would constitute proof of implicit bias.
“Where is the evidence of racial profiling?” asked U.S. Circuit Judge Juan Torruella, a Reagan appointee. “What is the alleged evidence of stereotyping?”
Dreiband said that from 1980 to 2019 Asians were admitted at a lower rate than their percentage in the applicant pool every single year, and Harvard’s own expert found that Asians were penalized by more than 11% relative to other groups.
The personal rating is “very suspicious,” Dreiband said. “Harvard admissions officers are sitting in their offices assigning ratings based on criteria like courage and integrity and somehow, in some mysterious and unexplained way … Asian-American applicants are being rated as having less courage and less integrity despite the fact that based on the other metrics, academics and extracurriculars, they are the highest achievers.”
Consovoy noted that in the year after the litigation was filed, the percentage of Asians who were admitted sharply increased, suggesting that Harvard was trying to cover its tracks.
But “that’s like the rooster taking credit for the dawn,” said Waxman, who was solicitor general during the Clinton administration. He noted that there had been other spikes in 2004, 2007 and 2012.
Lynch said the statistical evidence was confusing and suggested that factors other than implicit bias might explain the differences. And Waxman said there was no direct evidence at trial to establish implicit bias.
But Consovoy said it’s up to Harvard to disprove the inference of bias.
“Harvard has no explanation” for the disparities, he said. “The District Court ultimately ended up speculating that there were innocent reasons that can’t be found in the record,” he claimed, saying Harvard’s actions couldn’t be justified based on “evidence-free speculation.”
Consovoy also suggested that Harvard could create more diversity through race-neutral measures, such as limiting the number of students accepted for athletic reasons or because they’re children of alumni or faculty members — all groups that tend to skew white.
Lynch wanted to know if Consovoy was arguing that subjective criteria should be outlawed altogether. Consovoy said no, but he added that a university that uses subjective criteria has a higher burden of proof that it’s not illegally discriminating.
“If subjective criteria are the only area where minorities lose, that’s a problem,” he said, suggesting that it was unlikely that in such a large number of cases “Asian-Americans have worse personalities and deserve lower personal scores.”
Dreiband said that it would be okay to use race as a criterion if it were narrowly tailored, but at Harvard it “pervades every aspect of the process.”
But Jin Hee Lee of the NAACP Legal Defense & Educational Fund told the court that the plaintiffs’ ultimate goal was “elimination of race-conscious admissions and nothing more.”
If the plaintiffs win, it would reduce the number of Black students at Harvard by one-third, she claimed.
U.S. Circuit Chief Judge Jeffrey Howard, a George W. Bush appointee, rounded out the panel.
A similar case has been brought by the same nonprofit against the University of North Carolina. That case claims that an out-of-state Asian male who had a 25% chance of admission would have a 99% chance of admission if he had exactly the same application but were Black.
Although five of the 10 judges on the First Circuit went to Harvard, the case was assigned to three who didn’t. Lynch went to Wellesley, Torruella went to the University of Pennsylvania and Howard attended a state college in New Hampshire.
Burroughs, the judge who held in favor of Harvard, applied to the university as an undergraduate but was rejected.