Diversity and Elimination of Bias CLE Teleforum: The Harvard Case and the Meaning of Diversity in a Multi-Racial Era

Professional Responsibilities & Legal Education Teleforum

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The Federalist Society offers a unique opportunity for attorneys in New York, California, Minnesota, and Illinois to fulfill the one-hour “Diversity and Elimination of Bias” CLE requirement in those states.

On September 30 a federal district judge in Massachusetts issued a ruling rejecting discrimination claims in Students for Fair Admissions v. President and Fellows of Harvard College, 2019 U.S. Dist. LEXIS 170309 (D. Mass.), a case that many expect to go to the U.S. Supreme Court and potentially redefine affirmative action law.  In the case, Asian-American students allege that Harvard’s racial preferences for other minority groups discriminate against them in violation of Title VI of the 1964 Civil Rights Act.  The students introduced evidence that Asian enrollment at Harvard is less than half what it would be if admission was based solely on academic achievement; that Asian applicants receive the lowest scores on an amorphous “personal rating” assigned by admissions officials who have not met them; and that Harvard’s “holistic” admissions system, touted by the Supreme Court as the model for permissible racial preferences, was originally devised to exclude Jews.

The case raises the question of the meaning of “diversity” in an increasingly multi-racial era, and the continued justification for affirmative action in that era when its burden may now fall largely not on the white majority but on another historically marginalized racial minority group.

Dennis Saffran, a New York appellate attorney and Vice President of the Federalist Society Long Island Lawyers Chapter, submitted an amicus brief in the case on behalf of the National Association of Scholars and has written about the case for the Manhattan Institute’s City Journal.  He will review the Supreme Court’s major affirmative action precedents since Bakke in 1978 and the arguments in the Harvard litigation in light of these precedents.


**Additional CLE Instructions:


  1. Please check this event page the morning of the event, where there will be a dropbox link to download all CLE Materials including the links for the online Certificate of Attendance, Evaluation Form, and the PDF Written Materials.
  2. Call into the Teleforum number 1-888-752-3232 before 1:55 p.m. ET on Wednesday, December 4th, 2019.
  3. An electronic sign-in link will go live 10 minutes before the call start time. Please make sure to electronically sign in using this link at the beginning of the call, within 10 minutes of the start time of the call. 
  4. Listen for the "Unique Program Codes" during the call and enter those codes on your Certificate of Attendance to verify your attendance.
  5. Fill out your Certificate of Attendance and Evaluation Form that will be accessible on the event page up until the conclusion of the event, within 14 days of the conclusion of the program.

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Professional Responsibility & Legal Education Practice Group, was recorded on Wednesday, December 4, 2019, during a live teleforum conference call held exclusively for Federalist Society members. This call was meant for CLE credit; however, to be eligible, you must have called in and answered the responses during the call.


Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's call is a Diversity and Elimination of Bias CLE Credit Teleforum entitled “The Harvard Case and the Meaning of Diversity in a Multi-Racial Era.” My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call.


      Today, we are fortunate to have with us Dennis Saffran , who is an appellate attorney as well as a political and public policy writer and consultant. After Dennis gives his opening presentation, we will then have a few minutes for audience Q&A. Thank you all for joining us today. Dennis, the floor is yours.


Dennis Saffran:  Great. Micah, thank you very much, and I want to thank everyone for calling in. Before I start, Micah mentioned the written materials, and no, I certainly don’t expect people  to immediately read everything, but you might want to click on it and scroll down to Chart 1 and click on that. If you’re a believer, as I am, that a picture is worth a thousand words, this chart, this picture, which I’ll get to in the middle of my presentation, might sum the whole thing up. So looking at that chart might be the equivalent of listening to me for an hour.


      Before we actually get to the Harvard litigation, since this is a CLE, I thought we should start with the background on the case law. And the very first case, the first time the Supreme Court dealt with the merits on the constitutionality of racial preferences and higher education was, of course, the famous Bakke case in 1978, which you all remember reading about in law school or maybe, like me, you were in law school at the time. Bakke concerned the admissions program for the UC Davis Medical School which had an affirmative action program that set aside 16 out of 100 slots for blacks and other underrepresented minorities. And essentially, underrepresented minorities competed for those 16 slots as well as for the other 84, but white applicants only competed -- could only compete for the 84 slots. So there were separate admissions programs, in effect.


      That was struck down by the Court in a 5-4 ruling that was really 4-1-4. There were six opinions spanning a few hundred pages, as I recall. The main ones were Justice Brennan on the left, speaking -- writing for four justices, would have completely upheld the program.  Justice Stevens, then the conservative appointee on the Court, wrote for four justices and would have struck it all down on statutory, on Title VI grounds, without reaching the Constitution. So that’s something of a distinction without a difference.


      And the swing vote in the middle was Justice Powell. And Justice Powell’s opinion, which has come to dominate, later formally adopted by the Court in a later case, had several main rulings. First, he held for the first time that reverse discrimination, as it was then called, was subject to strict scrutiny. That had been a topic of debate. Did strict scrutiny only apply to alleged discrimination against so-called discrete and insular minorities? Powell held no, that it applies to alleged discrimination against the white majority as well. Applying strict scrutiny, he then held that reversing past or remedying past discrimination was only a compelling interest if there had been specific judicial, legislative, or administrative findings of past discrimination, that it could not be used, for example, by a college without a court order or a legislative or administrative finding that the college system had indeed discriminated.


      So with that ruling, Powell struck down the main justification for affirmative action that had been argued for the 10 years or so that preferences had been in effect before that. He also held quite strongly that any specified percentages such as Davis had or so-called racially balancing was facially unconstitutional. But crucially, he held that only one of the four alleged compelling interest that was proffered by the University of California was indeed a compelling interest, and that was diversity, or specifically, the educational benefits of a diverse student body.


      And in saying how diversity could be used, he crucially, for present purposes, cited and actually attached the Harvard Admissions Program which Harvard had submitted as an appendix to its own amicus brief that it filed along with several other Ivy League schools in favor of UC Davis. And Powell holds this up as the golden example of permissible racial preferences because it was a holistic program. I’m not sure if he actually used that phrase or if that gets introduced later, but that came to be the term that is used now; that is, that race is merely a, quote, “plus factor,” along with a lot of other plus factors. The Harvard appendix talked about preferences or a tip for being a farm boy from Idaho, or a musician, etc., etc. And what Powell said is what Davis did with its explicit proportional set-aside for minorities was unconstitutional, but what Harvard did was the ideal where it’s just a, quote, “plus factor.”


      So for the next 25 years, nobody knew for certain if Justice Powell’s opinion was controlling. There was a lot of skirmishing about recondite Supreme Court case law, which I’m certainly not going to get into, partly because I don’t understand it, about when a decision like that that didn’t command the support of the majority of the Court but swung a decision is and is not controlling. Most circuits found it controlling, but several, most notably the Fifth Circuit, held that it wasn’t controlling and struck down, even, Harvard-like plus factor preference programs. That’s notable because that will come up in one of the two later cases, the Fisher litigation.


      But meantime, before we get to Fisher, Court next visited racial preferences in higher education 25 years after Bakke in the Grutter/Gratz duet of decisions, both concerning the University of Michigan, but Gratz concerned the undergraduate admissions at Michigan. Grutter concerned law school admissions. And the law school and the undergraduate program had very different policies. They both involved racial preferences.


      Gratz struck down a program for the undergraduate college that provided applicants who were underrepresented minorities 20 automatic bonus points out of a total of 150 points that you could get, and out of only a total of 100 that you needed to be admitted. So any black or Latino applicant started out one-fifth of the way there. In a 6-3 decision in Gratz, the Court now struck that down. Writing for the dissenting justices who would have upheld it, interestingly, was Judge Stevens, after a 25-year ideological journey to the left, was now writing for the minority of only three judges who would have even upheld the Gratz program.


      Now, Grutter, which involved the University of Michigan program, was a more so-called holistic review that had been modeled after Justice Powell’s decision in Bakke. And the Court upheld that while striking down the 20-point bonus in Gratz. They upheld the law school’s holistic program 5-4. The two swing judges there were Justice O’Connor, who wrote the majority decision, and Justice Breyer also swung between the two cases.


      Grutter did six things. First of all, it formally adopted Powell’s Bakke opinion and said, “We’re not going to get into this recondite issue about whether it should have been binding all these years because we now say that we like it now, the formal case law of the Court.” Second, it then, reiterating Powell, held that diversity -- the educational benefits of a diverse student body was, indeed, a compelling interest, but racial balancing, on the other hand, was patently unconstitutional. Like Justice Powell, Justice O’Connor, now writing clearly for the majority, cited the Harvard plan approvingly and said along with citing that that race can be a plus factor, and relatedly, goals were okay, but quotas were bad; quotas bad, goals good.


      The fourth thing of note that becomes relevant in the Harvard case is that Justice O’Connor stressed deference to universities. She writes a lot about academic freedom, the decision almost, as lawyers say, sounds in the First Amendment, though it’s not a First Amendment case, but it cites a lot of First Amendment decisions about academic freedom.


      Fifth, she says that in deciding under the compelling interest test whether universities’ policies are narrowly tailored to achieve diversity, that school is not required to exhaust all possible race-neutral alternatives to preferences, but it must give, quote, “serious good faith consideration to any such alternatives.” And she rejects the suggestion of a 10 percent -- just admitting, say, the top ten percent of high school graduates, or in this case, it would have been college graduates. She says, understandably, that that would unworkable for a law school. Which colleges would they take 10 percent from? But that will also become relevant in the Fisher litigation, which was the next big case.


      So most importantly, and what people remember Grutter for, is Justice O’Connor’s passage at the end where she says that we expect that affirmative action will be limited in time. Race conscious admissions policies must be limited in time because they are so -- however compelling their goals, they are potentially so dangerous that there must be an end point. And she writes for the Court, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”


      But note the inherent contradiction right there, the interest to prove today in her decision and that Justice Powell would approve 25 years earlier was not redress of past discrimination; it was racial diversity. So why should they have an end point? We understand why they have an end point if they’re redressing societal discrimination, and we’re hopefully well on the way to redressing that, but why would there be any need -- if diversity is so good and compelling, why will we need it any less in 25 years than in 2003? But O’Connor doesn’t address that.


      Justice Souter had a very interesting dissent in the Gratz case. Now, Souter sided with the -- not only dissented in Grutter where he would have upheld the law school’s holistic policy, but he was one of the three liberal dissenters in Gratz. He would have upheld the 20 points there. And he said, “What’s the difference between a plus factor and a numerical point bonus? Plus what? Plus usually has a number after it, so isn’t this all a charade? If you’re talking about a plus factor, aren’t you always, whether you acknowledge it or not, adding on some specific numerical value?” But the majority didn’t address that. Perhaps just as well, because as I said, Justice Souter went on to say, “Let’s uphold everything.” So that’s 2003.


      The Court next visits this issue 10 years later in 2013 in the case of Fisher v. The University of Texas at Austin. Some background with the Texas system which I alluded to just now in talking about the 10 percent option, Texas, before 1996, did explicitly consider race, may have even considered it somewhat more explicitly than Justice Powell allowed in Bakke. And the Fifth Circuit, as I mentioned, struck that down in a case called Hopwood in 1996 and said any use of race is unconstitutional. In response, the Texas legislature, then-Governor George W. Bush and the Texas legislature adopted the Top Ten Percent Plan, which you may have heard about. Several other states enacted similar plans around the same time as an alternative to standard affirmative action. And that simply set aside 75 percent of the slots at UT Austin for the top 10 percent of every public high school graduating class.


      Now, the top 10 percent was not what was directly at issue in the Fisher litigation. It was the other 25 percent because what happened then from 1996 to 2003, then you had 75 percent was set aside for the top 10 percent, and under Hopwood, the remaining 25 percent had to be chosen based purely on academic merit. As soon as Grutter is decided, and in effect overrules or reverses Hopwood by saying that Powell’s opinion in Bakke is the law of the land and that preferences are allowable in the service of diversity, the Texas academics say, “We have to…” -- even though the Ten Percent Plan had been working just fine, the minority enrollment at UC Austin had actually increased. But they said, “No, we have to have diversity, which is now allowed.” And they instituted for the other 25 percent a Bakke/Grutter type holistic plan.


      Fisher was a woman who was denied admission. She wasn’t in the top 10 percent of her class. She didn’t challenge the Ten Percent Program though; she challenged the fact that she was discriminated against. Since she was not a minority, she was discriminated against in the competition for the remaining 25 percent of the slots. The Court, very interestingly, once this makes it up to the Supreme Court, strikes down or, to be more technical, remands the Texas program back to the Fifth Circuit in a 7-1 decision written by Justice Kennedy. Only Justice Ginsburg dissents.


      And Kennedy holds in Fisher I—because it’ll come back in Fisher II—but he holds, first of all, that some but not complete deference is owed to universities’ academic judgement that diversity is indeed a compelling educational interest. But there is no deference, he holds, to whether the means they’ve chosen for this, racial preferences or some other means, is narrowly tailored to achieve the diversity goal. And specifically, there is no deference at all on whether there are race-neutral alternatives to sufficiently and adequately achieve the goal of diversity.


      The main holding, therefore, is, quote, “that a reviewing court must be satisfied that no workable race-neutral alternatives exist,” and that this is a, quote, “searching inquiry.” And related to that, the reviewing court cannot, quote, “accept the school’s assertions,” or, quote, “presume it acted in good faith in assessing race-neutral alternatives,” and therefore narrowly tailoring preferences to achieve the diversity goal. Notable about Fisher, and a lot of -- and the reason that a lot of people thought in the wake of Fisher I that this was the death knell for affirmative action, that the 25-year timetable might even be speeded up.


      And you can get from that tone, it was very questioning, very skeptical about preferences, and the tone comes up throughout the case. Notably, the Court even questions whether diversity is, in fact, a compelling interest. But then Kennedy raises this on his own, but then says, “Oh, no party raised the issue, so we don’t have to decide this now.” But pretty rare for a major court decision like that to raise an issue of that nature and dangle that possibility. And then he closes at the very end by noting that famous line of, I think, Justice Marshall that strict scrutiny is often strict in theory but fatal in fact. And he says, “Well, it shouldn’t be fatal in fact; it also should not be feeble in fact,” very much indicating that strict scrutiny of racial preferences has to be, as he’d said earlier, a searching inquiry. So that’s 2013.


      It was in that context that the Harvard case was filed a year later by Students for Fair Admission, which was actually a project of the same group that had been involved in the Fisher -- that was involved in the Fisher litigation. And that case begins to percolate through discovery and pretrial motions. Meantime, Fisher, too, wends its way back down to the Fifth Circuit. The Court had not directly struck down the Texas program, but it had remanded for this searching inquiry of whether there were no race-neutral alternatives that could achieve the diversity goal without preferences.


      But even though the Supreme Court had just ordered this searching inquiry, the court of appeals didn’t, in turn, remand to the district court. Rather, it just reaffirmed summary judgement for the university. So the case comes back up to the Supreme Court on the exact same record. And yet, they then go the other way in a 4-3 decision. That was because Justice Kagan who had been involved as Solicitor General couldn’t take part, and Justice Scalia had, though he heard oral argument on the case, had passed away a few months before. In a 4-3 decision written by, guess who, Justice Kennedy, same guy who seemed to be strongly signaling the end of affirmative action and racial preferences in the very same case three years before.


      I’ve read Fisher II several times now, four or five times, and I still don’t know what it means. I’m not going to claim that I do. Justice Kennedy does reiterate that no deference is owed on the question of narrow tailoring, and specifically, that the university bears the burden of proving that no workable race-neutral alternatives exist. And yet, on the very same record, he now finds that the race-neutral alternatives suggested by Fisher were not workable.


      He rejects expanding the Ten Percent Plan which was one of the suggested alternatives, say, raising it to 15 or 20 percent, saying that it’s not really a race-neutral alternative because its goal is to boost minority enrollment, the goal of the Ten Percent Plan. We all know that it’s about race, but what is a race -- if the goal is racial diversity, what is a race-neutral alternative by definition? A race-neutral alternative is a way to achieve greater racial diversity without explicitly using race. So under Kennedy’s logic, there are no race-neutral alternatives.


      And then the most interesting thing that approaches a holding, he does say that -- he cautions, after upholding, again, diversity as a compelling interest, he cautions that the educational benefits of diversity writ large is not a sufficient compelling interest. The diversity goals, quote, “can’t be illusory or amorphous.” Rather, they, quote, “must be sufficiently measurable.” But they can’t be numerical, or that would be a quota. So they must be measurable, but they can’t be numerical.


      Justice Alito, in a dissent which I recommend to you, it’s in the materials, eviscerates this. And he also notes two other things that, unfortunately, we really don’t have time to get into, but blasts the majority and the Fifth Circuit for completely ignoring discrimination against Asians, which, while that wasn’t what Fisher was about, he says the record is pretty replete with this. And yet, the Fifth Circuit and the majority, quote, “act as if Asians don’t exist,” close quote.


      He also notes that the Court’s problem with expanding the top 10 percent is it, quote, “admits the wrong kind of African Americans and other minorities,” close quote. And Texas was very explicit, at least in, apparently, in the argument of Fisher I, that it wanted more upper middle class and upper class minorities because otherwise, it would have to lower its standards too much if it were to take lower -- poor blacks and Latinos. But as Alito writes, the whole idea of affirmative action was to benefit disadvantaged minorities, and this, quote, “stands affirmative action on its head.”


      So if you read nothing else, I would recommend Alito’s dissent in Fisher II. It’s of a length where it was probably supposed to be the majority opinion, but it’s worth at least skimming those passages.


      Finally, before turning to the Harvard case, I just want to note an earlier case where the Court avoided the merit four years before Bakke, a case called DeFunis v. Odegaard, which involved the University of Washington law school. The Court avoided the merit, saying it was moot because DeFunis had already been accepted to and graduated from another law school, but Justice Douglas has a fascinating dissent there, and I’ve actually highlighted some of the relevant passages.


      And remember, for those of you who are too young to remember, Justice Douglas was the great radical on the Court. He was not just a liberal. He was the Bernie Sanders of his day. And yet, he writes a dissent from the mootness denial in which he, in some passages, very strongly indicates that he would have struck it down precisely because it was based on race rather than economic circumstances.


      He notes, “While a black applicant who pulled himself out of the ghetto may thereby demonstrate a motivation, perseverance, and ability that shows that he actually has more promise than the son of a rich Harvard alumnus, the same is true,” he says, this is not just limited to, quote, “blacks or Chicanos or American Indians.” It’s also undoubtedly true of, quote, “a poor Appalachian white or second generation Chinese in San Francisco.” And the difference between a policy like that and, quote, “ the one presented by this case is that the admissions committee would be making decisions on the basis of individual attributes rather than solely on the basis of race.”


      And he also talks with great foresight about the complications of doing this on the basis of race which have emerged and are starkly presented by the Harvard litigation, which is that -- and Douglas speaks as someone from Washington, which always had a very large Asian population, which is that this is a multiracial society. And he says, “What about including the Chinese and the Japanese, who certainly were discriminated against in Washington? And we’re going to have law schools and, ultimately, the courts then deviled by the claims of -- and sometimes good claims of every group that has been discriminated against in society.”


      So read those two dissents, Alito’s in Fisher and way back, Justice Douglas’s dissent in Odegaard. I would submit that things might have been very different if Justice Douglas, the radical, rather than the slightly less radical liberals on the Court had prevailed back in the ‘70s.


      With that editorial comment, I’ll turn to the Harvard litigation, Students for Fair Admission v. President and Trustees of Harvard College. Filed, as I said, in November 2014 in the wake of Fisher I, it was five claims under Title VI because Harvard’s a private institution. It’s not directly governed by the Equal Protection Clause, but the courts have held that Title VI, which applies to any institution like Harvard getting federal funding is co-extensive with the Equal Protection Clause. And the five claims under Title VI were all based on the various factors that had been identified in Grutter and Fisher I, such as intentional racial balancing, race -- they alleged that Harvard had engaged in prohibited racial facially unconstitutional racial balancing, that race was not just used as a plus factor, and that there were race-neutral alternatives.


      Notably, it included an explicit call that plaintiffs have been very candid about from the beginning, an explicit call to overturn Bakke and Grutter and outlaw racial preferences. And the plaintiffs make this case by stressing two things: First, that the burden of preferences now falls not on the white majority but on another minority group that has historically been the victim of discrimination. And secondly, it stresses the delightful irony that Harvard’s holistic plan which endorsed and lauded by the Court in Bakke and Grutter was, in fact, born of an attempt to exclude another upstart achievement oriented minority, and it arises from an expressly anti-Semitic attempt to limit the number of Jews at Harvard in the 1920’s, an attempt that was occurring at Harvard and at other Ivies at the time but was perhaps starkest at Harvard.


      And the anti-Semitic history which plaintiffs detail is indeed eye-popping. There’s no other word. A little background: Proportionate Jews at Harvard had been increasing starting in the 1890s when Harvard decided that it wanted to be a school of the academic elite rather than merely the social elite, which it had been previously. By 1900, Jews were already 7 percent of the Harvard student body as Harvard introduced more academic rather than social tests for admission. And that, as you might guess, didn’t sit that well with various alums and faculty, and even the then-President of Harvard.


      There is a great -- not great, a horrendous letter in the record sent by a member of the Class of 2001 [sic] to President Lowell of Harvard. After he had attended the Harvard/Yale game in 1921, writes to President Lowell, “To find that one’s university had become so Hebrewized was a fearful shock. There were Jews to the right of me, Jews to the left of me.” And he beseeches Lowell to, quote, “devise a way to bring Harvard back to the position it always held as a white man’s college.”


      President Lowell, back in 1921, was very sympathetic to this and responded that, quote, “he had foreseen the peril of having too large a number of an alien race and had tried to prevent it,” which indeed he had during, I think, the year before. Right around the time of this letter, he had proposed to the faculty a 15 percent de jure Jewish quota. That was rejected. The Jewish population at Harvard continued to increase. There was an attempt to have geographic preferences to get some of those farm boys from Idaho to limit the number of Jews. That didn’t work. And by 1925, Jews were 27 percent of Harvard student body.


      And at that point, Lowell proposes a de facto rather that de jure quota, which would be achieved by instituting a holistic admissions system stressing, quote, “character more than academics.” He writes in his proposal, “To prevent a dangerous increase in the proportion of Jews, I know only one way, and that is a selection by a personal estimate of character.” And it worked. This time, the faculty accepted the proposal. Harvard introduced for the first time interviews, personal essays. They didn’t have those things before. And the Jewish population plummeted from 27 percent in 1925 to 15 percent in 1926, and then essentially flatlined right though World War II.


      The experience of Asians at Harvard the last four decades starkly parallels this, as is depicted in that Chart 1, which I suggested you click on before. If you haven’t done that, I would take a look at it now if you can because like I say, a picture is worth a thousand words. The chart shows -- the title is “Harvard Jewish Enrollment, 1908-1942, and Asian Enrollment, 1976-2010.” And as the subtitle describes, “During roughly equal 35-year periods separated by about 70 years, the representation of Jews and Asians at Harvard climbed steadily, dropped sharply, and then essentially flatlined.”


      Asian enrollment increased during the early and mid ‘80s from about 4 percent to 10 percent, more than doubled. Then it really spiked in the late ‘80s after the Reagan and Bush I administrations has initiated an earlier investigation by the Education Department’s Office of Civil Rights of a complaint of discrimination against Asian applicants by Harvard. And the Asian share of the population peaked at 21 percent in 1993. But beginning in 1994, which was the first year in which all the students at Harvard had been admitted after the close of that investigation in 1990, the Asian numbers went into reverse and then stagnated and dropped pretty sharply, and then stagnated about 16 percent for two decades. It has increased again in the last few years, not surprisingly, since this case has been filed.


      Ron Unz, the conservative author and Harvard graduate, actually found strikingly similar patterns at other Ivies, that’s in Chart 2 of the materials titled, “Asians Age 18-21 and Elite College Enrollment Trends, 1990-2011.” And with the exception of two lines on the chart, one of which shows the increase in the Asian college cohorts, which was the largest, Asians have been the fastest growing population group in the country, and Caltech, which is the only top school that does not have racial preferences, you see these two lines just keep going  up sharply. All the other lines for Harvard, Yale, Princeton, Brown, Columbia, they all converge. It looks like one of those charts of electrical wiring flowing into the central station or the nervous system flowing to whatever controls the nervous system. They all converge at just about 16 percent.


      Other evidence that the plaintiffs produced at trial of anti-Asian discrimination by Harvard and other top schools -- there was a famous study about 15 years ago by Princeton Professor Thomas Espenshade that Asian applicants to elite schools faced odds 3 times as high as similar whites, 6 times as high as Hispanics, and 16 times as high as African Americans, that they need SAT scores 140 points higher than whites, 270 points higher than Hispanics, and 450 points higher than blacks. That is, an Asian applicant with an SAT score of 1500 has the same chance of getting into an elite school as a white with a 1360, a Latino applicant with a 1230, or an African American applicant with a 1050.


      Evidence that plaintiffs produced confirmed similar, if not as extreme, bias at Harvard. The SAT scores of Asians admitted in 2015 were 218 points higher than those of admitted blacks, and an Asian applicant with a 25 percent chance of admission based on grades and SATs would have a 36 percent chance if white, a 77 percent chance if Latino, and a 95 percent chance of admission if black. Harvard’s own internal study had shown that Asians would increase from 19 percent to 43 percent of the student body if admission was based on academics alone. The plaintiff’s expert, looking at more voluminous Harvard data produced in discovery, found it would actually be 50 percent, but in either case, more than a twofold increase.


      And what came out of trial was also evidence that these statistics may reflect intentional discrimination. Most notably, Harvard has personal rating as one of its five rating scales. The personal rating is a totally vague and amorphous concept variously defined as reflecting such intangibles as integrity, courage, kindness, interestingness. And Asians score lower than any other group on the personal rating, even though, interestingly, they don’t score any -- did I say lower? Obviously, I meant lower. Even though, interestingly, they don’t score any lower on the ratings given by the alumni interviewers who actually meet them face to face. These personal ratings are assigned entirely by admissions officials in Cambridge who’ve never seen these applicants. And yet, there is a -- it’s not huge, but it is statistically significant, Asians score lower.


      There is actually one other piece of evidence that’s worth, even though we’re running late on time, that’s worth noting is there is a letter in the file from then-President Drew Faust of Harvard in response to another alum who had written her a letter that, maybe not quite as blatant as the “Jews to the right of me, Jews to the left of me” letter to President Lowell, but pretty striking for 2012. Quote, “The last time I was in Cambridge, it seemed to me that there were a large number of Oriental students. I think they should be limited to five percent.”


      The Director of Admissions at Faust’s direction sent a very polite, startlingly respectful reply thanking the alum for his, quote, “many thoughtful observations about Harvard College and its admissions process,” and thanked him for his efforts to “help us continually improve the quality of the student body,” and for his loyalty over the years. And Faust defends this at her deposition, noting that the alum was 90 years old, had, quote, “probably fought in World War II, and had supported scholarships.” So there’s, quote, “just no reason to tell him his letter is preposterous.”


      So I would just suggest on that that actually President Faust may well be right, in my opinion. There would be no purpose sending him a more confrontational letter calling him out on his racism. But I would submit that it is inconceivable that she would have responded, or that any other college president would have responded, to a letter from a 90-year-old contributor and World War II veteran talking that way about any other minority group.


      So that leads to the decision, which came down September 30. Trial was last -- two week trial last October into early November, oral argument in February, and then six months to plow through the thousands of pages of records, and 130-page finding of fact conclusions of law. I’m not going to belabor that, but there are, to me, two notable things about the decision issued by Judge Allison Burroughs. The first is the incredible deference to Harvard throughout the opinion in just, to me, clear contravention of the Fisher I -- the rule set forth explicitly in Fisher I, and at least in theory reiterated in Fisher II.


      Let me just read some passages to get the flavor. Quote, “Several admissions officers testified at trial and forcefully denied racial animus or prejudice against Asian or Asian Americans infect Harvard’s admissions process. Consistent with this, the court finds no persuasive documentary evidence of any racial animus or prejudice against Asian Americans,” unquote. When the Dean of Admissions testified that he wasn’t concerned at all that the Harvard internal investigation that I mentioned had found evidence of statistical discrimination against Asians, he had no concern that it reflected actual discrimination. The judge says, quote, “Well, this was reasonable, given his experience with and confidence in the admissions office process,” end quote.


      Another quote: “Harvard’s witnesses credibly testified that they did not use race in assigning personal ratings,” unquote, and any such use would have been noticed by the, quote, “numerous considerate, diligent, and intelligent admissions officers,” unquote. Further, any effect of the personal ratings was, quote, “so slight that it went unnoticed by careful and conscientious observers within the admissions office,” unquote. So would that the judge in every discrimination case talked about the defendants this way.


      Second main point, which I take from this 130-page opinion, is Harvard argued and the court essentially accepts that Asians score lower in the personal ratings because, quote, “race correlates with personal qualities that affect personal ratings.” Or in other words, Asians, just like the Jews in the 1920s, have less of that special je ne sais quoi. Now, the court, in fairness, does say at the end, maybe realizing the implication of what it had already written, it says, quote, “it firmly believes that Asian Americans are not inherently less personable than any other group,” but I would submit that the implication is nonetheless clear.


      Status of the case: It’s on appeal to the First Circuit. There should have been a briefing schedule assigned by now under the First Circuit rule. There hasn’t been, but assuming it will be assigned shortly, under the rules, that should mean submission of briefs after the first of the year and on into perhaps the early spring or late winter. I would guess argument in the circuit by the spring. And then of course, it could be in a case like this the court could take six months or up to a year to rule, to plow through this kind of evidentiary record, and then the cert petition to the Supreme Court.


      I would just conclude this all by saying that this litigation and the reason a lot of people think it’ll go to the Supreme Court is that it brings into stark relief the ironic impact of race-based admissions preferences in today’s multiracial society. Whatever the justification for them in the essentially biracial era of 1978 before large Asian immigration, 1978, when Bakke was decided, the burden now falls heavily on another historically marginalized racial minority. Affirmative action, the flagship of multiculturalists, has foundered on multiculturalism itself.


      And with that, I am happy to take any questions that we might have time for.


Micah Wallen:  We will now go to our first caller.


Chris Bakes:  This is Chris Bakes from Sacramento, California. I’m just curious as to whether there was a little bit of due diligence check on where that judge went to law school.


Dennis Saffran:  Didn’t go to Harvard. I think she went to BU or BC. She went to Middlebury undergrad, and she has put on the record that she was rejected by Harvard.


Chris Bakes:  So she’s still trying to cozy up.


Dennis Saffran:  [Laughter] Perhaps. Or I would say that if you either went to Harvard or you went to Fitchburg State, you understand that Harvard doesn’t walk on water. If you went to Middlebury, you may not be aware of that.


Micah Wallen:  All right. And no other questions in the queue, so I believe that concludes our program for today. On behalf of The Federalist Society, I would like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.


Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.




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