When Judge Allison D. Burroughs ruled in federal court in October that Harvard University had not discriminated against Asian Americans in its admissions process, she offered some unusual reasoning to explain her decision. She wrote: “The wise and esteemed author Toni Morrison observed, ‘Race is the least reliable information you can have about someone. It’s real information, but it tells you next to nothing.’”
And yet, as Burroughs’s 130-page decision shows, she treated Harvard’s claims about its use of race in college admissions as incredibly reliable—indeed, like articles of faith in the religion of “diversity” that the college has pursued with fervent zeal.
The case was brought by Students for Fair Admissions, a nonprofit organization representing Asian-American students whom Harvard had rejected. The students claimed that subjective criteria (such as personality ratings) had been used in a discriminatory fashion to keep Asian-American students (whose grades and standardized test scores were higher than those of other racial groups) from gaining admission. For years, even as increasing numbers of highly qualified Asian Americans have applied to Harvard, their percentage of Harvard’s student body has remained steady at around 20 percent. What could explain this fact pattern?
For Burroughs, answering that question doesn’t really matter as long as Harvard claims everything it does is in service to the laudable yet vaguely defined goal of achieving “diversity.” She notes approvingly that Harvard’s student body is made up of applicants who are “exceptional across multiple dimensions” and cites the description in the Harvard alumni “Interviewer Handbook” that boasts of the way the college “holds a more expansive view of excellence” than other institutions.
However expansive and exceptional the institution’s view of excellence might be, the admissions process itself is brutal, and the lawsuit revealed in detail how the sausage is made at Harvard. Burroughs’s ruling describes the “lop process,” whereby admissions officers assess and eliminate applicants in various rounds, as being done with almost supernatural care in the school’s effort to understand the “whole person.” In point of fact, it resembles a surreal, marathon game of Diversity Bingo, as officers weigh “athletic rating, legacy status, gender, and race of the applicants,” all under the watchful eye of the dean of admissions, who regularly “informs the Admissions Committee of the characteristics of the admitted class, which may include racial composition.”
Burroughs also seems impressed by the system of “tips” Harvard gives to certain applicants based on their status as “ALDCs”—athletes, legacy applicants, “Dean’s interest” applicants (which is the acceptable euphemism for the children of wealthy donors), or the children of Harvard faculty members. Burroughs claims that Harvard’s “objective in giving tips to applicants based on criteria other than individual merit, such as to legacies and the children of its faculty and staff, is to promote the institution and is unrelated to the racial composition of those applicant groups.”
Well, it might be “unrelated to the racial composition,” but it has a decidedly racial effect, given that the overwhelming beneficiaries of those tips are white. A paper written by two economists (one of whom served as an expert witness in the Harvard case) and published by the National Bureau of Economic Research found that eliminating ALDC preferences would disproportionately affect white students, 43 percent of whom are admitted thanks to ALDC. “Our model of admissions shows that roughly three quarters of white ALDC admits would have been rejected if they had been treated as white non-ALDCs,” the paper reports. “Removing preferences for athletes and legacies would significantly alter the racial distribution of admitted students, with the share of white admits falling and all other groups rising or remaining unchanged.”
Judge Burroughs saw no problem giving less qualified white kids tips, because although it might level the playing field for Asians and even “improve socioeconomic diversity” across the applicant pool to get rid of the tips, she “takes no position on these issues other than to note that these are topics best left to schools to figure out for themselves.”
As for the plaintiffs’ argument that black and Hispanic applicants also receive unfair tips because of their race, she said, “most Harvard students from every racial group have a roughly similar level of academic potential.”
This is not true. There are significant differences in GPAs and standardized test scores among different racial groups applying to Harvard. As Burroughs conceded in her ruling, “more than 60 percent of Asian-American applicants received academic ratings of 1 or 2 [the highest] compared to 46 percent of white applicants, 9 percent of African-American applicants, and 17 percent of Hispanic applicants.” And as Burroughs herself notes elsewhere in her ruling, “Asian-American students usually matriculate at a higher rate than white students, while admitted Hispanic, African-American, Native American, and multiracial applicants matriculate at a lower rate.” So not only is their academic potential different, their outcomes are as well.
Which is perhaps why Burroughs’s acceptance of Harvard’s defense of its admissions policies rests on something far more subjective and vague: diversity.
One of the more compelling arguments made by the plaintiffs in this case was that Harvard had alternatives to race that it could use to assess applicants, such as economic diversity. As WBUR reported, studies by Harvard economist Raj Chetty have found “about as many students at Harvard came from the top 1 percent of the income distribution as the bottom 60 percent.” The largest diversity gap on elite campuses isn’t the one between white and nonwhite students; it’s between the wealthy and everyone else.
Why didn’t Harvard adopt economic diversity, as the plaintiffs suggest? Burroughs claims that “every such proposal presented to the Court would result in a significant decline in African-American representation.” Thus, while Burroughs is happy to let schools like Harvard do whatever they want with regard to letting less qualified athletes, rich kids, legacies, and children of faculty members in to the school, she rejects alternative tips such as socioeconomic background because they wouldn’t allow for enough African-American students. The implication of her reasoning is clear: When tips harm “deserving” minorities such as African Americans, they are unacceptable as alternatives to race, but when they harm minorities such as Asian Americans, they are deemed acceptable in light of a broader “diversity” mission.
As well, Burroughs sided with Harvard because she said she found “no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans.” She found no use of quotas, for example, even though she did note a kind of soft-quota effort in effect. “If at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year,” she noted in her ruling, “the Admissions Committee may decide to give additional attention to applications from students within that group.”
But what if a group is notably overrepresented, as Asian-American applicants have been for some time? Burroughs never addresses this question directly but accepts at face value Harvard’s claim that “race is only intentionally considered as a positive attribute,” never a penalty.
To do so, she leans heavily on the findings of a committee that Harvard created in 2015. It was called the Khurana Committee after its leader, Harvard College Dean Rakesh Khurana—whose other crusades have included abolishing single-sex clubs on campus and getting law professor Ronald Sullivan removed from a campus position for serving as legal counsel to Harvey Weinstein. It was formed as a response to the lawsuit to study the “benefits that the College derives as an institution, and for its students and faculty—from study body diversity of all kinds, including racial diversity.”
Burroughs called it “an extensive and thoughtful examination of the benefits of diversity to Harvard College.” Not surprisingly, this committee convened to defend diversity in the face of litigation decided to “emphatically embrace and reaffirm” Harvard’s commitment to diversity.
A later committee, called the Smith Committee, on which Khurana also served, explored whether race-neutral alternatives for admissions such as economic-diversity efforts would work at Harvard. It will amaze you to learn they found that any such alternatives just wouldn’t do.
Relying on Harvard’s own committees to provide objective proof of its fairness is like asking the fox to determine the safekeeping of the henhouse. And yet Burroughs repeatedly defers to Harvard in her ruling: “The Smith Committee concluded that no workable race-neutral admissions practices could, at that time, promote Harvard’s diversity-related educational objectives while also maintaining the standards of excellence that Harvard seeks in its student body through its whole-person, race-conscious admissions program.” More notably, the Smith Committee concluded that race-neutral alternatives would not permit Harvard “to achieve the level of racial diversity it has credibly found necessary for its educational mission.”
This case has been closely watched because in making their claim, Asian-American students have pulled a thread that is gradually unraveling the veil of race privilege at Harvard. It and other elite institutions are happy to pat themselves on the back for promoting diversity for what they deem worthy minorities while simultaneously protecting the privilege of their largely white (and wealthy) ALDC students at the expense of Asian Americans.
This isn’t diverse; it’s despicable. If they really cared about diversity, they would eliminate not only racial preferences but also ALDC preferences, which would allow greater opportunity for unprivileged students of all racial background to be treated equally.
The case also exposes the logical (and moral) contortions that elite institutions engage in as they pursue “diversity.” In the Harvard case, the statistics alone were not enough to cause the court to conclude that Harvard had engaged in improper intentional discrimination. But statistics were enough for Burroughs to reject alternatives to race policies, such as economic disadvantage, because that would lead to an unacceptable decline in the number of African-American students.
Similarly, Burroughs embraced Harvard’s statistical model, giving the university the benefit of the doubt that any discrimination was negligible and unintentional. She repeatedly notes that some of the lower “personality” ratings that Asian-American applicants received could be explained by less enthusiastic recommendations from high-school guidance counselors and teachers. “Harvard’s admissions officers are not responsible for any race-related or race-correlated impact that those letters may have,” she said. Would this standard hold if Harvard was accused of allowing its admissions process to magnify sexist views of women or racist views of African Americans?
Harvard is a private institution and can make whatever decisions it wants to about the makeup of its student body—just as long as it ceases taking any federal funds, which it is unlikely to do. And viewed counterintuitively, any admissions lawsuit effectively benefits Harvard’s reputation. It reminds the world that Harvard is the Studio 54 of the Ivy League; people are impressed by the ever-growing line of students outside the door hoping to be deemed worthy of getting into the club. Cases like this one put temporary pressure on the bouncers who determine who is allowed in and who is not, but the club remains elite and proudly discriminatory. That is, after all, its brand.
But the brand is starting to suffer. The recent Varsity Blues college bribery scandal has shown the seamier side of the admissions process, and elite institutions like Harvard are increasingly under pressure to justify the provenance and size of their enormous endowments (Harvard’s tops $40 billion, with a “b”). Like the expensive elite high schools that serve as feeders to places like Harvard, and whose “diversity” is just as carefully curated to reflect racial differences while ignoring socioeconomic ones, the devotion of elite colleges to diversity looks less like a high ideal and more like cynical PR.
The question that the appeals court (and eventually the Supreme Court) that will next hear the case must answer is this: Does an elite institution’s own vaguely defined need for racial diversity justify denying equal opportunity to students of some races (i.e., those who meet Harvard’s stringent academic requirements for admission but who happen to be Asian) while boosting the chances of others (athletes, legacies, the children of rich donors, and the progressive elite’s idea of “deserving” minorities—African-American and Hispanic students)?
More important, are Harvard’s claims (and those of other elite institutions) about the benefits of diversity true and compelling enough to justify compromising the principle of equal opportunity? The Supreme Court has made clear that affirmative action cannot be used as a remedy for past discrimination, so a lot is now resting on the rather vague notion of “diversity” as a value in itself. As Burroughs herself notes, “race-conscious admissions will always penalize to some extent the groups that are not being advantaged by the process, but this is justified by the compelling interest in diversity and all the benefits that flow from a diverse college population.”
Some Harvard students put it more bluntly (and honestly) than Burroughs did. As one undergraduate told the Boston Globe about the court’s decision, “most of the students here feel this wasn’t a case of letting in more Asian-American students, but a case of letting in fewer black and Latinx students.” Another added, “Harvard has reformed to take down a system that has historically disenfranchised minorities. Fundamentally, I think affirmative action is about working against this politically driven climate of disenfranchising brown and black students as a whole.”
In her ruling, Burroughs foresees a day when such attention to race will no longer be necessary. “The rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance, and understanding that will ultimately make race-conscious admissions obsolete,” she writes. But Harvard is already a majority-minority institution; as NBC News recently noted, in 2017, “minorities made up the majority of Harvard’s freshman class of 2021.”
That’s the thing about progressives and their utopias: They are always “ultimately” on the horizon, never quite achieved—which is why it’s so easy for them to be contemptuous of claims of injustice from those it deems unworthy. And why Allison Burroughs’s shameful whitewash of Harvard’s horrific policies will be far from the last word on the intellectual, academic, and ideological corruption befouling our elite liberal institutions.