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Harvard Freshman Selection Litigation

By Arthur Katz, JD


Harvard Freshman Selection LitigationEarlier this year, I briefly wrote about one aspect of the current litigation instituted by the group “Students for Fair Admissions” (the “SFA”) against Harvard College [See the June/July, 2018 issue of Education Update for background information concerning the litigation]. The focus of this earlier article was the confidentiality of college applications. However, the principal issue of the litigation is whether affirmative action can be utilized as part of the admissions process, by an educational institution receiving federal funding, in order to achieve the type of diverse community which the institution believes is a necessary part of its educational mission.

The use of affirmative action has been previously discussed [See the September/October, 2013 and the January/February, 2016 issues of Education Update] in connection with another litigation also sponsored by the SFA. In “Fisher v. University of Texas at Austin”, the conservative Justices then on the U.S. Supreme Court raised serious questions regarding the need for continued use of affirmative action as part of the holistic approach being taken by most colleges, including Harvard, in determining the make-up of its entering freshman class. At that time, the Court permitted the continued use of affirmative action provided that “strict scrutiny” was utilized. Strict scrutiny permits the use of affirmative action if a showing can be made that other permitted techniques would not accomplish the desired objective.

The SFA structured the Harvard litigation in an attempt to, again, bring the issue of affirmative action before the Supreme Court at a time when the Court has become more conservative. As a result, there is a possibility that the use of affirmative action in the college selection process may be coming to an end.

The underlying facts of the case are interesting. In essence, the argument by the SFA is that Asian-American applicants to Harvard are discriminated against and held to a higher standard, in favor of both Caucasians as well as other minority groups. The SFA says that proof of such discrimination is that the percentage of Asian-Americans admitted to Harvard is significant less that the percentage of Asian-Americans applying to Harvard with high academic achievements.

Although 22.9 percent of this year’s freshman class at Harvard is Asian-American, if only academic achievements were considered, over 40 percent of the class would be Asian-American. At the same time, 15.2 percent of Harvard’s freshman class is African-American and 12.3 percent is Latino. Harvard contends (and the SFA appears to agree) that if race were not able to be considered during the admissions process, the percentage of African-American admittees would significantly decline.

In recruiting for its freshman class, more than 40,000 completed applications were received by Harvard for approximately 2,000 slots and, of this pool of applicants, over 3,400 had perfect SAT math scores, over 2,700 had perfect SAT verbal scores and over 8,000 of the domestic applicants had perfect high school grade point averages.

What complicates the matter is that, although approximately 2,000 freshman slots are available annually, certain applicants are favored in the first instance, as Harvard has a legacy system which significantly increases the probability of admission to qualified students whose parents or other relatives attended Harvard, as well as to students whose family have made, or are expected to make, significant monetary contributions to Harvard, to students of “exceptional athletic ability” and to students who are children of faculty members. These favored groups, which currently are overwhelmingly Caucasian, constitute nearly 40 percent of the high school seniors ultimately admitted to Harvard.

Although there have been several weeks of oral testimony, both Harvard and the SFA are relying upon, and have submitted to the District Court, a voluminous expert economic analysis of the underlying admissions data to bolster their respective claims. Fortunately, these submissions (with minor redactions) are part of the court record, are publicly available and are an interesting read. However, different conclusions are reached depending on the particular study.

The Harvard study claims that the SFA study is flawed, while the SFA study argues that Harvard’s conclusions contain an unconscious bias against Asian-Americans. Harvard alleges that the SFA does not understand the full nature of its selection process, which includes not just a review of academic performance from an academically exceptional pool of applicants, but also is based upon a variety of non-academic factors. The SFA contends that certain of such non-academic factors permit a bias to develop and that this bias has disadvantaged Asian-Americans. Harvard has countered that the economic study submitted on behalf of the SFA fails to include some non-academic factors as they are much harder to quantify, and that the SFA study does not adequately consider the overall context of an applicant’s application, such as the quality of the applicant’s high school, the applicant’s socioeconomic circumstances and the resources and opportunities that may, or may not, be available to the applicant, and concludes that the SFA study is too weak to provide reliable statistical evidence of bias.

Thus, there is no certainty as to how the District Court will rule but, whatever the ruling, it is probable that the result will be appealed and may slowly wind its way to the U.S. Supreme Court. However, and in the interim, the litigation has revealed a significant amount of information concerning the admission process at Harvard, how applications are considered, the preference given to legacy and others applicants, and the imperfections of the process. #

Arthur Katz, a corporate attorney, is Of Counsel to the New York City law firm of Otterbourg, P.C.



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