Does Harvard Treat Asian-American Applicants Unfairly? The Case Goes To Trial

Oct 15, 2018
Originally published on October 15, 2018 9:03 am

A federal lawsuit alleging Harvard University discriminates against Asian-American applicants goes to court this week in Boston.

While the case focuses on Harvard, it could have big consequences for higher education, especially if it moves on to the U.S. Supreme Court. At stake is 40 years of legal precedent allowing race to be one factor in deciding which students to admit.

The group Students for Fair Admissions, led by conservative legal strategist Edward Blum, is suing Harvard, charging the university engages in "racial balancing," which is illegal, and discriminates against Asian-American applicants by rating them lower on intangible traits like courage, kindness and leadership.

"Harvard is systemically saying that Asian candidates are not likeable and don't have good personalities ... which is nothing but racist," says Lee Cheng, a lawyer and secretary of the Asian American Legal Foundation, which supports the lawsuit.

"It perpetuates, feeds and creates stereotypes," Cheng says.

Cheng is Chinese-American and graduated from Harvard in 1993. He believes Harvard's admissions process upholds stereotypes that Asian-Americans just do well in math and standardized tests.

According to Students for Fair Admissions, none of the anonymous, Asian-American plaintiffs who claim they were denied admission will testify. Still, Cheng thinks the group has a chance of winning.

"The people who are harmed who are the basis for this group to file this lawsuit are concerned that they will be discriminated against in graduate school admissions as well as in job applications," Cheng says. "Their existence is real. If they weren't real, this lawsuit couldn't move forward."

Civil rights activists and college leaders see the lawsuit as an attack on race-conscious admissions, which, in a series of decisions since 1978, the Supreme Court has allowed if done carefully.

Harvard has denied the charges, saying Asian-Americans account for 23 percent of the students admitted to this year's freshman class.

"Nobody wants to be judged on their numbers alone," Harvard President Larry Bacow said at a higher education event in September. "People understand and recognize that we learn from our differences, that creating a diverse learning environment enriches the learning experience for every student on campus."

Ted Shaw is the director of the Center for Civil Rights at the University of North Carolina's Law School. He says, in the past, opponents of considering race in admissions have gone after top public institutions. He believes the Harvard suit is an attempt to broaden that attack to private, selective colleges.

"This is a very important moment because the balance of the [Supreme] Court is in play," Shaw says. "And so we can't assume that the results that have [been] obtained in previous cases are going to continue."

Supreme Court Justice Anthony Kennedy was the key swing vote in the 2016 decision that preserved race-conscious admissions at the University of Texas at Austin. Kennedy retired earlier this year, and Brett Kavanaugh recently replaced him.

In August, the U.S. Justice Department threw its support behind the lawsuit, saying Harvard's admissions process "may be infected with racial bias."

U.S. District Court Judge Allison Burroughs, who was nominated by President Barack Obama and sworn in in 2015, will preside over the non-jury trial.

Earlier this month, Burroughs granted Harvard students and alumni permission to testify and make their case for racial and ethnic diversity. Harvard's dean of admissions, William Fitzsimmons, and former president, Drew Faust, will also take the stand.

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RACHEL MARTIN, HOST:

Harvard University goes on trial in Boston today for alleged discrimination against Asian-Americans. The group that's suing the school is called Students for Fair Admissions, and it claims the university systematically ranks Asian-American applicants lower on personality characteristics. Harvard denies this charge. Joining us now, reporter Kirk Carapezza of Boston member station WGBH. He's been following this story closely. Kirk, thanks for being here.

KIRK CARAPEZZA, BYLINE: Hey. Good morning, Rachel.

MARTIN: So I just gave the broad brush strokes of what the suit is about, but can you get more detailed? What is the central allegation here?

CARAPEZZA: Sure. The group Students for Fair Admissions, led by conservative legal strategist Edward Blum, is claiming that Harvard caps the number of academically qualified Asian-American applicants by using these personal ratings. In court, the group will need to prove that Harvard is intentionally rejecting the applicants because they're Asian, because of their race. I spoke with attorney Lee Cheng with the Asian American Legal Foundation, which is supporting this lawsuit. Cheng is Chinese-American, and he's also a Harvard graduate.

LEE CHENG: Harvard is systematically saying that Asian candidates are not likable and don't have good personalities by orders of magnitudes less than candidates of any other ethnic group, which is really nothing but racist. It perpetuates and feeds and creates stereotypes.

MARTIN: So just to be clear, Kirk - so Harvard uses this personality rating system for all applicants. It's just that this group is alleging that Asian-American applicants are the ones who get dinged most often.

CARAPEZZA: Right, Rachel. They're - the group is claiming that Harvard is using these rankings to racially balance its classes, which is illegal. It's unconstitutional.

MARTIN: So how is Harvard waging a defense?

CARAPEZZA: Harvard says there's been no discrimination against Asian-American applicants. And it continuously points out that Asian-Americans now account for 23 percent of all admitted students, and they make up just 6 percent of the U.S. population. At a higher education event in Detroit last month, I caught up with Harvard's new president, Larry Bacow, and he defended the college's admissions process.

LARRY BACOW: Nobody wants to be judged on their numbers alone. People understand and recognize that we learn from our differences, that creating a diverse learning environment enriches the learning experience for every student on campus.

CARAPEZZA: And Bacow says what's at stake here is Harvard and higher education's ability to create that diverse environment, which he argues is central to its mission.

MARTIN: The Trump administration has come out and weighed in on this. The Department of Justice is backing the plaintiffs. Is going to make a difference?

CARAPEZZA: Right. Last month, the Justice Department filed a brief in support of the lawsuit, saying Harvard's admissions process, quote, "may be infected with racial bias." Here in Boston, Judge Allison Burroughs will preside over the trial. And she was nominated by President Obama back in 2014. And she's the same judge who blocked President Trump's executive order designed to ban refugees and immigrants from seven predominantly Muslim countries. Judge Burroughs is known for her independent streak, so I don't think she'll be swayed by the Justice Department or the Trump administration or any other political agenda.

MARTIN: I mean, this is about Harvard, but could this case have an impact on admissions policies at other schools?

CARAPEZZA: Civil rights leaders certainly worry about that. They see this lawsuit as a direct attack on race-conscious admissions, which for the past 40 years the Supreme Court has allowed if carefully done. Students for Fair Admissions has explicitly said their goal is to overturn that precedent. And they want selective schools like Harvard to stop considering race altogether.

MARTIN: Reporter Kirk Carapezza from WGBH in Boston, thanks so much.

CARAPEZZA: Thanks, Rachel. Transcript provided by NPR, Copyright NPR.