In the commencement speech that Drew Gilpin Faust, then the president of Harvard, gave in 2009, she interpreted “Veritas,” the university’s motto, as “the commitment to use knowledge and research to penetrate delusion, cant, prejudice, self-interest.” One of the final messages she sent out before stepping down, in June of this year, referenced veritas again, in the mode of crisis management. (I received the message as a Harvard employee and an alumna of its law school.) A civil-rights lawsuit that was filed against Harvard in 2014, alleging that its undergraduate-admissions process discriminates against Asian-Americans, was moving forward in court, and Faust wrote in response, “Harvard will vigorously defend its longstanding values and the processes by which it seeks to create a diverse educational community.” The plaintiff’s portrayal of facts about Harvard would be inaccurate, she claimed, and she was “committed to ensuring that veritas will prevail.” The implication was that Harvard was defending against nothing short of the assault on truth itself.
The lawsuit, which will go to trial next week in federal district court in Boston, has been called “the Harvard affirmative-action case,” and it has been spoken of as if it could end affirmative action at Harvard and elsewhere. Both the plaintiff, a national group called Students for Fair Admissions, and Harvard benefit from describing it that way, but, in fact, the stakes are somewhat different. Students for Fair Admissions was founded by Edward Blum, a conservative activist who has orchestrated several lawsuits challenging affirmative action, and the initial complaint included a demand that the court declare it illegal to use race as a factor in college admissions. But, in keeping with Supreme Court precedents, the judge in the case, Allison D. Burroughs, has granted judgment in favor of Harvard on that point. The question that remains for trial is whether Harvard has gone beyond what the Supreme Court has said are permissible ways to consider race in admissions—and, specifically, whether it has shown a special bias against Asian-American applicants.
Documents that came out in discovery in the lawsuit, and which were made public this past summer, revealed some startling facts. In 2013, Harvard’s Office of Institutional Research conducted an internal investigation of race bias in its admissions process and produced reports suggesting that it was biased against Asians. Among the most striking findings was that Asians were admitted at lower rates than whites, even though Asian applicants were rated higher than white applicants in most of the categories used in the admissions process, including academics, extracurriculars, and test scores. One exception was the “personal rating.” According to Harvard, this rating “reflects the wide range of information . . . that bears on applicants’ personal qualities,” and “may shed light on the applicant’s character.” The plaintiff claims that the use of affirmative action does not explain the negative effect on the admissions rate for Asians relative to whites. (Harvard said that its prior analysis was “incomplete, preliminary, and based on limited inputs.”) Warring expert economists retained in this case, both highly respected, interpret the data differently, owing to somewhat arcane disagreements about methodology: one concludes that the admissions rate for Asians is attributable to discrimination, whereas the other concludes that it is not. An unfortunate upshot is that, for Harvard to be right, it must be true that Asian applicants really did have worse personal qualities than white applicants—a suggestion that Harvard officials denied in depositions.
It has served Harvard’s interest for people to think that, unless it wins this case, affirmative action will be eliminated, and that Harvard’s treatment of Asian-American applicants was necessary to attain an acceptable level of diversity among its undergraduates. The many amicus briefs that have been filed in support of Harvard generally make those assumptions. One brief, filed by sixteen élite universities, including the rest of the schools in the Ivy League, states that if they were “required to adopt race-neutral admissions policies” they “would no longer be able to effectively pursue the attainment of the type of diversity that advances their educational missions.”
But to understand the stakes of the case, it is important not to conflate two separate concepts: the legal issue of affirmative action and the factual issue of whether Harvard discriminated against one particular racial group. The case against Harvard will be strongest if the allegations about how Asian applicants were evaluated relative to white ones turn out to be true. The defense of Harvard will be strongest if it can demonstrate that there is no way to fulfill the goal of diversity without suppressing Asian applicants relative to white ones to some degree. But answering these key factual questions does not entail upending the consideration of race as a factor in evaluating black or Latino applicants, or other groups that would be unacceptably underrepresented in the absence of race-conscious admissions.
There are serious questions about the future of affirmative action. The Trump Administration has made clear its preference for race-blind admissions policies, rescinding, in July, the Obama Administration’s guidance encouraging schools to use race-conscious affirmative action. The Department of Justice filed a statement of interest on behalf of the plaintiff in the Harvard lawsuit, emphasizing the Supreme Court’s view, expressed in 2003, that race-based admissions policies must be “temporary.” For affirmative action to remain legally permissible in higher education, it may need the support of the newest Justice, Brett Kavanaugh. In his confirmation hearings, Kavanaugh was questioned on whether he supports using race as a factor in admissions in order to achieve diversity on campuses. His response referred to his work in the White House for George W. Bush, noting that the President “was interested in promoting racial diversity” but “believed in using race-neutral means first.”
It makes sense that Harvard would try to use the general legality of affirmative action as a shield to defend itself against the ugly and specific allegations of intentional discrimination against Asians. It also makes sense for many Asians to feel hesitant about objecting to being discriminated against, fearing that their objection may jeopardize affirmative action itself. But the dispute that will need to be resolved this fall is about Harvard’s alleged discrimination, not whether affirmative action must go. Harvard’s new president, Lawrence Bacow, issued a message this week recognizing the trial’s potential to create divisions on campus, and urged, “we must be quick to understand and slow to judge.” If veritas demands finding that Harvard has in fact engaged in discrimination against Asians, one can safely root against Harvard and in favor of race-conscious affirmative action at the same time.