Court Relies on Expert Witnesses in Affirming Dismissal of Challenge to Harvard Affirmative Action Policy

Written on Thursday, December 3rd, 2020 by T.C. Kelly
Filed under: Expert Opinions, In the News, Working with Experts

The controversy surrounding university admissions policies that consider race has been fueled by lawsuits alleging that the policies discriminate against Asians. In a recent appellate victory for Harvard, the court considered competing expert witness testimony in ruling that Harvard’s admissions policy did not violate the law.

Students for Fair Admissions (SFFA) sued Harvard University, alleging that its admissions policies discriminated against Asian Americans. The SFFA has initiated similar suits against the University of Texas at Austin and the University of North Carolina as part of a national litigation strategy to overturn U.S. Supreme Court rulings that permit a very limited form of affirmative action to promote racial diversity in student populations.

Harvard Admissions

Harvard selects about 1,600 students each year from a pool of about 35,000 applicants. Since it cannot give a position to each applicant who is likely to achieve academic success, academic excellence is only one of several factors that guide its admissions decisions.

Harvard recruits students who have good grades and high college admission test scores without regard to their race. To expand its applicant pool, Harvard also recruits minority students who did not do as well on standardized tests. Whether Harvard recruited a student, however, is not a factor that Harvard considers when it makes admission decisions.

Applications provide Harvard with a wealth of information, including the applicant’s standardized test scores, transcripts, extracurricular and athletic activities, awards, teacher and guidance counselor recommendations, intended field of study, a personal statement, and other information an applicant would like Harvard to consider. Applicants can reveal their race but are not required to do so.

Consideration of Race in Admissions Decisions

Admissions officers give applications a numerical rating in various categories of achievement: academic success, extracurricular pursuits, athletic pursuits, school support (as measured by the strength of teacher and guidance counselor recommendations), and a personal rating that considers the positive effect the student might have on the Harvard community. The personal rating considers the applicant’s perceived leadership, maturity, integrity, personality, ability to overcome setbacks, concern for others, and whether the applicant is “a good person to be around.”

Experiences pertaining to race, such as an applicant’s struggle to overcome discrimination, might inform the personal rating. However, race does not play a direct role in the personal rating and Harvard instructs admissions officers not to consider the race of applicants when assigning a personal rating.

Finally, admissions officers assign an overall rating. They can consider “tip factors” when assigning an overall rating. Tip factors include legacy status and athletic ability. About 30{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of Harvard’s students are legacy applicants, the children of donors, the children of faculty members, or recruited athletes. Applicants in those categories have a significantly higher chance of being admitted than applicants outside of those categories.

Other tip factors include race and ethnicity, geographical location, and economic background. Apart from legacy status (which often rewards alumni who contribute to the school) and recruited athletes, one goal of tips is to achieve a racially, ethnically, geographically, and economically diverse student body. Harvard also considers an applicant’s intended field of study to assure adequate student interest in the classes that it offers.

Expert Testimony

A good bit of the trial addressed the legal validity of Harvard’s policy of promoting racial diversity in its student body. Supreme Court precedent prohibits racial quotas or “racial balancing” in admissions. It also prohibits race from being a mechanical factor that gives applicants a decisive advantage. Precedent nevertheless allows schools to consider race as one of many factors for the purpose of promoting diversity, which the Court recognizes as a compelling educational interest. However, race can only be considered if no race-neutral alternative is available that would achieve the same diverse student body.

The trial and appellate courts were persuaded by expert testimony that race was not a decisive factor in Harvard admissions. Even SFFA’s expert witness admitted that Harvard rejects most Hispanic applicants, and almost half of African American applicants, who are “among the top 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} most academically promising applicants to Harvard in terms of standardized test scores and GPA.” Harvard’s admissions process is so competitive that it admits only highly qualified students, regardless of race.

The expert evidence did not suggest that Asians who were rejected were any more likely to succeed at Harvard than black and Hispanic applicants who were accepted. In fact, the evidence established that ancestry enhanced the opportunity of some Asian applicants to be accepted.

The district court rejected SFFA’s racial balancing claim. It determined that Harvard treats every applicant as an individual and that every applicant competes for every seat. The court of appeals accepted that finding after noting that SFFA presented no expert evidence to support its claim that Harvard denies the applications of Asian American applicants in order to promote admissions of non-Asian applicants.

A statistical analysis presented by Harvard’s expert witnesses established that “the share of Asian American applicants admitted to Harvard has increased roughly five-fold since 1980 and roughly two-fold since 1990.” Expert analysis also demonstrated that the annual admission of Asian applicants varies more than the number of applications submitted by Asians, a finding that undercuts the claim that Harvard engaged in racial balancing.

Expert testimony established that the elimination of race as a factor in Harvard’s admissions policy would reduce the African American share of Harvard’s student body from 14{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 6{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} and would reduce the Hispanic share from 14{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 9{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}. Experts examined race-neutral alternatives proposed by SFFA, such as strengthening recruiting and financial aid, eliminating standardized testing, and eliminating tip factors. The expert witnesses concluded that none of those alternatives were viable means of assuring racial diversity.

Discriminatory Intent

The SFFA relied on the expert testimony of Peter Arcidiacono, an economics professor at Duke University, in its effort to prove that Harvard intentionally discriminated against Asians. Harvard countered with the expert testimony of David Card, an economics professor at UC-Berkeley. Both experts relied on statistical models that used regression analysis to explain how one variable (race) affected admissions while controlling for all other variables (such as grades and test scores).

The models suggested that Asian applicants tended to receive better scores than other applicants based on academic criteria but slightly worse scores based on personal factors. While the personal rating was correlated with race, the court of appeals agreed with the district court that correlation does not prove causation. In other words, the expert evidence did not establish that race influences the personal rating. The court regarded the statistical evidence of intentional discrimination as inconclusive and therefore held that SFFA failed to prove that Harvard violated the law by intentionally discriminating against Asian applicants.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.