The Lightning Rod: Race and Admissions at Harvard

In September 2011, Former University President Derek C. Bok faced a scene he once thought impossible: close to 1,000 black Law School graduates, many of them leaders in their fields, eating, chatting, and laughing together.

The Law School was holding its third-ever Celebration of Black Alumni. More than 700 graduates made the trip back to campus for the three-day event.

Forty years after serving as Dean of the Law School, Bok, too, had returned to Harvard. On the final day of the gathering, Bok and former Law School assistant director of admissions Walter J. Leonard both received the Law School Medal of Freedom Award for their work in diversifying the school. Over the course of Bok’s tenure as Dean, the two substantially increased the number of women and minority students at the Law School.

After accepting his award, Bok sat down to a celebratory brunch in a large white tent packed with black alumni—and was struck “powerfully” by what he saw.

“Given how this whole process had started, when we had such a long way to go and our early efforts were really quite desperate to change these historic patterns, and then to see these hundreds of alumni…” Bok remembers.

Bok recalls how, after the meal, alumni “clustered” round him to introduce themselves. He met dozens of court judges, law firm partners, and—this he particularly remembers—pharmaceutical company Merck CEO Ken Frazier, who graduated from the Law School in 1978.

“You had before you the living, breathing example of what it was all about, these people who are playing important positions in the law when there were so few at the beginning. It was a very moving experience,” Bok adds.

When Bok was appointed University President in 1971, he made Leonard his special assistant and set to work diversifying the student body. Together, Bok and Leonard developed the “Harvard Plan,” an admissions policy applied across Harvard’s schools that allowed recruiters to take into account applicants’ race and ethnicity.

Bok and Leonard’s implementation of the policy—more commonly known as affirmative action—in the 1970s set a national precedent, causing universities across the United States to adopt similar standards. But the Harvard Plan has also become a lightning rod for criticism of race-conscious admissions.

Critics of affirmative action have argued that the policy discriminates against white—and more recently, Asian-American—students. And, given that most elite private colleges do not disclose how they take race into account in admissions, some detractors have claimed the closed-door nature of the process invites misconduct.

The American debate surrounding race-conscious admissions has centered, to a large extent, on Harvard. Since being held up as a gold standard in a precedent-setting Supreme Court case, the University’s race-conscious admissions system has come under intense scrutiny and attack in the past few decades.

In the late 1980s, the U.S Education Department launched an investigation to determine whether Harvard was illegally using racial quotas to deny deserving Asian Americans admittance to the school. After two years, the Department ruled in Harvard’s favor, concluding no quotas had been used.

Three decades later, in November 2014, a nonprofit group called Students for Fair Admissions launched a lawsuit against the University, claiming Harvard’s admissions practices unfairly limit the number of Asian Americans admitted to the school. The lawsuit, which is ongoing, has garnered national attention and sparked debate on college campuses from coast to coast.

Harvard has denied any discrimination against Asian-American applicants.

The lawsuit, now stretching into its fourth year, is the latest manifestation of a long-running trend: Harvard’s high profile and steadfast commitment to affirmative action renders the University an attractive target for those seeking to topple race-conscious admissions across the country.

By Cynthia Guo

‘SOMETHING A WHITE PERSON CANNOT OFFER’

But Harvard was not always an exemplar of diversity. Bok says he first developed affirmative action in part to bring variety to Harvard’s then-overwhelmingly white and all-male student body.

In the early 1950s, just a few years before Bok assumed the Presidency, then-Dean of Admissions Wilbur J. Bender ’57 described the ideal Harvard student desired by “critical alumni” in a letter to then-University Provost Paul H. Buck.

“[He is] the well-dressed, polite, Nordic blonde from a family with an income of $20,000 a year and up, living in a swanky suburb,” Bender wrote. “These are the boys who make the fraternities… they go on into insurance or bond selling or advertising or what not and become the background of the Country Club set and have lots of divorces.”

Bender wrote in 1953 that many alumni were worried Harvard was “losing its appeal” for this “one special kind of boy.” Roughly 20 years later, Bok would realize these alums’ worst fears, and make a conscious decision to invite more than just the “Country Club set” into Harvard’s halls.

“We tried not just to have statistical diversity of all kinds in admissions statistics but to try to encourage a lot of interaction so people do learn from groups that have had rather different experiences than their own,” Bok says, reflecting on the early rollout of affirmative action. “We saw educational advantages for everyone.”

Since the 1970s, Harvard has not wavered from Bok’s position: Race continues to be taken into account during the admissions process. Diversity, the University has repeatedly argued, enhances every student’s experience at Harvard.

But Harvard’s approach to admissions has had consequences beyond diversifying the crop of students who set foot on campus each fall—it has also become a national standard for race-conscious admissions.

Matthew M. Cregor, who works for a legal group—the Lawyer’s Committee for Civil Rights and Economic Justice—that is helping to defend Harvard in the current admissions lawsuit, says a brief filed by Harvard helped decide the landmark Supreme Court case on issues of race-based admissions.

That case, Regents of the University of California v. Allan Bakke, began in 1974 when would-be medical student Bakke, then 38, sued University of California Davis School of Medicine after he applied and was rejected. Bakke claimed that less-qualified minority students had been admitted to Davis in his stead under a special minority admissions program.

Bakke’s case reached the Court in 1978; Harvard filed an amicus brief in support of Davis’s minority admissions program around that time. In its brief, Harvard argued for the benefits of race-conscious admissions and outlined relevant methods employed by admissions officials.

“If Harvard College is to continue to offer a first-rate education to its students, minority representation in the undergraduate body cannot be ignored,” the brief reads. “Race has been a factor in some admissions decisions… a black student can usually bring something that a white person cannot offer.”

The brief went on to note, however, that Harvard “has not set target quotas for the number of blacks” or other minority groups to be admitted in a given year. Instead, the College’s Committee on Admissions “pays some attention to distribution among many types and categories of students.”

In its final 5-4 decision, the Court struck down racial quotas but upheld some forms of affirmative action. Justice Lewis F. Powell Jr., who wrote the principal opinion, cited the “Harvard College program” as a paragon of race-conscious admissions and included the text of the Harvard brief in the appendix.

“[The brief] really helped convince the Supreme Court that our schools must be allowed to value diversity in a way that enables future leaders to learn from and with each other,” Cregor says. “The last 30 years plus of race-conscious admissions has been based on this notion of diversity.”

“Through the years, as the U.S. Supreme Court has looked at these issues, one of the voices that has been most convincing to the court on, ‘Are universities required to use race conscious factors?’ has been Harvard’s,” Cregor adds.

‘LICKING THEIR CHOPS’

As Harvard has become a national standard for constitutional affirmative action, it has also become a target for conservative activists.

One such activist is Edward Blum.

Blum is not a lawyer or a scorned college applicant, but a conservative provocateur who has made a career going after civil rights policies. His lawsuit against Harvard is just his latest effort.

Because of Blum’s work in 2013, the Supreme Court struck down a provision of the 1965 Voting Rights Act that required some Southern states to gain Justice Department approval before changing their election laws. While Blum says this decision eliminated “racial gerrymandering,” his liberal critics counter that this has allowed those states to make restrictive voter I.D. laws that target minorities.

Recently, Blum was behind the landmark affirmative action case Fisher vs. University of Texas at Austin.

In Fisher v. Texas, Blum sought out Abigail Fisher, the daughter of a former business colleague, who claimed she was denied admission to the University of Texas at Austin because she was white. But her grades and test scores would not have led to her acceptance even if she had been black, according to documents filed by the university.

Harvard filed a 27-page amicus curiae brief in support of the University of Texas at Austin in November 2015.

“It is more apparent now than ever that maintaining a diverse student body is essential to Harvard’s goals of providing its students with the most robust educational experience possible on campus and preparing its graduates to thrive in a complex and stunningly diverse nation and world,” the brief reads. “These goals, moreover, are not held by Harvard alone, but are shared by many other universities that, like Harvard, have seen through decades of experience the transformative importance of student body diversity on the educational process.”

As Fisher bounced around the lower courts, Blum decided to try a different tack. Operating through his legal defense fund, Project on Fair Representation, he launched a website soliciting students who had been rejected by Harvard to join a new suit. Fisher, centered on a white plaintiff, had stalled. Blum’s new site featured a dejected-looking Asian woman instead.

“Were You Denied Admission to Harvard?” it read. “It may be because you’re the wrong race.”

Despite these recruiting efforts, the plaintiff in Blum’s latest attempt to attack affirmative action is not a recognizable face like Abigail Fisher, but a non-profit organization that he founded in 2014 and directs, Students for Fair Admissions.

The non-profit’s legal filings cite a single, anonymous Asian-American student who was denied admission to Harvard.

Meanwhile, Blum shepherded Fisher’s case back up to the Supreme Court for a second try. The national debate over affirmative action came to a head in 2016, as the Supreme Court ruled 4-3 in favor of the University of Texas at Austin.

On the national stage, it seemed, the question had been answered. In June, Law professor Laurence H. Tribe ’62 called the ruling a “decisive victory” for Harvard.

But Blum isn’t done.

“There should be no place for race in college admissions. There should be no place for ethnicity. There should be no place for religion. There should be no place for gender or gender identification,” he says. “These things we are born with. These immutable factors do not define who we are as individuals.”

The legal battle at Harvard began in November 2014, when Blum’s nonprofit, Students for Fair Admissions, filed a complaint alleging that Harvard employs quotas for Asian-Americans students.

“As in the past, [Harvard] will use any leeway the Supreme Court grants them to use racial preferences in college admissions—under whatever rubric—to engage in racial stereotyping, discrimination against disfavored minorities, and quotasetting to advance their social-engineering agenda,” the complaint reads. “Strict scrutiny has proven to be no match for concerted discrimination hidden behind the veil of “holistic” admissions.”

“Harvard is not only limiting the number of Asians they will accept, but they’re also racially balancing every other race and ethnicity,” Blum says in an interview. “Both of those fall afoul of longstanding judicial precedent.”

Many have criticized Blum’s various attempts to attack affirmative action.

“The revenues that Mr. Blum seeks are the exact same ones he sought in Fisher and in other cases, which is an absolute prohibition on any University’s ability to use race conscious factors in admitting and enrolling its students,” Cregor says. “Mr. Blum and others have been licking their chops for this case for a long time and he’s chosen a most unfortunate means to go after it.”

During the discovery process—a pre-trial period where each party seeks evidence from the other—in May 2015, Students For Fair Admissions requested access to admissions data and was denied. But in September 2016, the presiding judge ruled that Harvard must provide the court with six cycles of admissions data.

“I just don’t think there’s going to be a smoking gun,” Parke Muth, an admissions consultant and former admissions officer at the University of Virginia, says. “I just think it’s very hard to demonstrate when you have holistic admissions that you’re outright breaking the law.”

Kim M. Williams, a Kennedy School professor who studies race and immigration in American politics, says those accusing Harvard of using quotas have the wrong picture of the admissions process.

“I think the reality is that people have a very metrics-oriented sense of what’s happening in admissions, and that’s just not the case,” she says.

In a statement, Faculty of Arts and Sciences spokesperson Anna Cowenhoven says that Harvard College does not maintain quotas of any kind.

“Our admissions process considers each applicant as a whole person, and we review a great number of factors, including an applicant’s academic qualifications, as well as a wide variety of personal factors,” she wrote.

The discovery process is ongoing and could last through 2018. If things go differently than they did in the Fisher case, Blum says he is hopeful there will be lasting reverberations.

“I think if Harvard’s admissions policies are struck down as impermissible racial quotas, it will send a very loud signal to other schools that have been discriminating against Asians and racially balancing their student bodies,” he says.

‘A HIGHER BAR’

Blum is not the first to accuse Harvard of discriminating specifically against Asian-American applicants. Roughly 30 years before Blum and Students for Fair Admissions filed their lawsuit, the United States Department of Education investigated the University’s admissions processes and found that there was no wrongdoing.

In 1988, the Education Department’s Office of Civil Rights embarked on a two-year-long investigation of Harvard’s admissions office, responding to allegations that the University was using racial quotas to deny Asian Americans admission.

The Office for Civil Rights concluded its investigation in 1990, ultimately finding that Harvard had not used quotas and was therefore not in violation of the 1964 Civil Rights Act, which outlaws discrimination based on race, sex, religion, or nationality.

At the time, Law professor emeritus Alan M. Dershowitz was vocal about his criticism of the department’s findings. Today, he remains a critic of the treatment Asian-American students in admissions processes.

“I don’t think there’s any doubt that many major universities today set a higher bar for admission for Asian-American students and several admissions officers have acknowledged it, saying if we went only by the numbers—grades, scores, and SAT scores—there would be a very much larger percentage of Asian-Americans admitted, and I think that’s not fair,” he says.

Dean of the Faculty of Arts and Sciences Michael D. Smith says he worries how perceptions that Asian-Americans have a harder time getting admitted to Harvard will affect students.

“We work very hard to communicate what we actually believe in the face of those perceptions,” he says. I’m a strong advocate for diversity of all kinds amongst our students.”

In response to the question of comparatively higher SAT scores for admitted Asian-American students at the time of the inquiry, the admissions office released a statement in 1988 arguing this was due to the low proportion of Asian-American students who were either children of alumni or recruited athletes.

Bok himself also publicly defended the University’s admissions practices at the time. Now, reflecting on the 1990 inquiry and the more recent 2014 lawsuit, Bok says he believes challenges to affirmative action may stem from a fundamental misreading of the program.

“A lot of people misunderstand this whole policy by thinking it’s some kind of outgrowth of the liberal conscience of leftwing universities and we’re trying to make up for all sorts of past misdeeds,” he says. “We’re not just trying to make up for past sins, we’re trying to build a better society, and that’s not just a crazy academic idea.”

More recently, outspoken conservative Ron K. Unz ’83 criticized Harvard’s treatment of Asian Americans in the admissions process. Last spring, a group of alumni led by Unz ran for Harvard’s Board of Overseers, the University’s second-highest governing body, on a platform that accused Harvard of using quotas for Asian Americans and pledged to reform the University’s admissions policies.

Jeannie Park ’83, who co-founded an alumni group formed to oppose Unz’s ticket, calls his platform a “stealth approach against affirmative action.”

“I think that obviously diversity at the University is one of the main values of a Harvard education and it’s what so many of us as alumni feel that we remember most and value most about our time at Harvard,” she says.

Harvard’s Asian American Association recently distributed a survey to their members about affirmative action. In a statement on their website, they wrote that most participants “thought that while affirmative action on the whole is a good idea, race does play a significant role in Harvard admissions and the current policies implemented at Harvard at worst have a negative effect on Asian American applicants and at best have no benefit.”

Despite worries about the place of race in Harvard’s admissions processes, the statement concludes that “Unanimously, survey respondents agreed that diversity enriches the college experience overall.”

In a further challenge to Harvard’s policies in May 2015, 64 Asian American groups filed a complaint against Harvard with the U.S. Departments of Education and Justice, citing Blum’s lawsuit.

But AAA’s statement noted that 75 percent of the Asian-American organizations that signed the complaint opposing Harvard’s policies were Chinese community groups, meaning other Asian nationalities were less well-represented.

“Asian American, as the name suggests, comprises a much larger and more diverse population than that of just East Asians (China, Japan, Korea),” the statement reads. “But groups like the ones above that criticize affirmative action as an idea must also recognize the diversity within the Asian American community itself and realize affirmative action’s benefits for other ethnicities within the Asian American diaspora.”

‘THE RACE FEELING’

Today’s conservative critics of Harvard’s admissions processes often refer to a dark chapter in the University’s history to further their claims.

Blum says that Harvard stuck out to him as “the most egregious discriminator” among peer institutions.

“Harvard has a long, ugly history of discrimination,” Blum says.

Blum is referring to the tenure of President Abbott Lawrence Lowell.

In an attempt to expand the student body beyond pupils from elite boarding schools, the admissions committee of Lowell’s day instituted a rule that required the University to reach out to male students in the top seventh of their class. In response, Lowell moved toward a model of admissions that required not just good scores but demonstrations of “character” through interviews and recommendation letters.

Under this guise, Lowell was able to limit the school’s diversity. His particular target was Jewish students, whose ranks had swelled to more than twenty percent of the student population in 1922.

“Harvard moved toward a holistic admissions which basically allowed them to deny Jewish students because they were Jewish, but you didn’t have to say that, you could say ‘Well they wouldn’t fit in,’” Muth, an admissions expert, says.

Lowell attempted to establish a direct quota that would limit the number of Jewish students to fifteen percent of the student body, but was overruled.

In a 1922 letter to Alfred A. Benesch ‘00, Lowell wrote “If [the] number [of Jews] should become 40 percent of the student body, the race feeling would become intense. If every college in the country would take a limited proportion of Jews, I suspect we should go a long way toward eliminating race feeling among students.”

In his complaint, Blum alleges that Harvard has a quota for the number of Asian-American students it will accept each year.

However, not everyone feels that the analogy is appropriate. In October court proceedings, the judge referred to SFFA’s lawyer’s insistence on bringing up Lowell’s policies as a “red herring time suck.”

Dershowitz, who mentioned Lowell’s policies in a recent book, says this “long, terrible history of discrimination” needs to be acknowledged by Harvard today.

“[Lowell] was a bigot of the worst order and there should be no house named after him,” he says. “Talk about changing names, if you’re going to change names, the first one to go should be Lowell.”

‘NOBODY WHO LOOKED LIKE ME’

Though Blum’s three-year-old lawsuit has sparked some renewed criticism of Harvard’s race-conscious admissions policies, it has also prompted others to step forward in defense of the University.

In April 2015, a group of 14 prospective, current, and former College students—all represented by the pro bono legal group Lawyer’s Committee for Civil Rights and Economic Justice—filed a motion seeking to intervene in the lawsuit in Harvard’s favor. The students hoped to offer personal testimonies to the value of diversity at the University.

But a panel of judges denied the request, and instead granted the students amicus status in the case, meaning they can submit briefs and participate in oral arguments.

Last year, two high school students who hope to attend the College filed a legal brief supporting Harvard’s race-conscious admissions process. In January 2017, judges granted these two students amicus status, too.

One of these students—Jason Fong, a high school senior from Southern California who has applied for admission to the Harvard College Class of 2021—publicly revealed his identity. The other student, a high school sophomore also from Southern California, goes by the initials “M.A.” in court documents and intends to apply to Harvard in the future.

Since filing to join the lawsuit, Fong, who is Asian American, has been deluged with media attention, receiving coverage from major outlets like NBC News and BuzzFeed. But Fong says he has not let his newfound fame “impact my day-to-day life.”

“Sometimes I’ve been the target of some online trolls or people being kind of rude in the comments section but other than that, there hasn’t been a real change,” Fong says.

Fong adds he is speaking out against Blum’s lawsuit in part to combat what he calls popular “misconceptions” about Asian Americans in the United States.

“Asian Americans are kind off rammed off and being used as a wedge group with the affirmative action debate, as a kind of model minority,” Fong says. “I think the general media presents the overall opinion of Asian Americans towards affirmative action as negative, and statistically, that’s not actually true.”

Recent data supports Fong’s claim; a 2016 national poll of Asian American voters conducted in part by legal and civil rights organization Asian Americans Advancing Justice found that a majority of respondents—64 percent—believed affirmative action was a “good thing,” while 25 percent reported viewing the policy as a “bad thing.”

Fong says he first became inspired to get involved in “Asian American politics” in middle school, when he was sitting in a United States history class and noticed there was “nobody who looked like me” in his class textbook. He says he was puzzled by the absence.

Fong soon noticed a pattern: Asian Americans were largely ignored in history books and in popular culture, unless they could be used to drive political agendas, like the anti-affirmative action debate. By serving as a “friend of the court” in Blum’s lawsuit, Fong says he is doing his part to end this narrative.

But he emphasizes there are other, broader reasons to join the suit. Fong says he believes a diverse student body “benefits truly everyone” attending college, and adds he feels duty-bound to speak in support of Harvard’s attempts to foster diversity on campus.

Cregor, the lawyer helping to defend Harvard’s race-conscious admissions, also says he thinks the stakes of Blum’s case are high.

“This lawsuit is the first real test of a race-conscious admissions policy at a private university such as Harvard,” he says. “So we hope this case sends a resounding message that, just as Harvard first argued in Bakke, our universities are allowed to use race-conscious admissions programs to support diversity.”

“We want to make it clear, once and for all, that Mr. Blum’s claims have no legs to stand on,” Cregor adds.

If recent history is any guide, it seems unlikely Blum’s lawsuit will settle the question of race-conscious admissions “once and for all”—at Harvard, or anywhere else. Polarizing since its birth, the policy of affirmative action has continued to generate controversy as it enters the 21st century.

And the result of Blum’s lawsuit is far from certain.

In 2021, the year Fong will graduate from college, affirmative action—as implemented at Harvard—will be 50 years old. Though hopeful, Cregor says trying to predict the status of Blum’s lawsuit at that point would be like “asking a meteorologist to predict the weather ten days out.” No one knows.

In the meantime, the suit wends its slow way through the courts—and Fong, like thousands of other high school students around the world, waits to hear whether he has gotten into Harvard.