Hello, hello, welcome to your extra morning show. My name is Philip Defranco
and today let's talk about Harvard. In November of 2014 a group called Students for Fair Admissions (SFFA) filed a lawsuit against Harvard
University representing a collection of anonymous Asian American plaintiffs who had been rejected from Harvard. SFFA describes itself as "a non-profit
membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and
unconstitutional. The group claims that Harvard is violating the Civil Rights Act by discriminating against Asian American applicants. For those that don't know, Title 6
of the Civil Rights Act, quote, "prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial
assistance." And the group suing Harvard argues that the school effectively uses a quota to cap the percentage of Asian American admissions.
They also say that the school engages in what they call racial balancing by using non academic
measures that give preferences to African Americans and Latinos to maintain a certain racial breakdown on campus, and SFFA ultimately wants Harvard and other
Universities at large to no longer consider race in their admissions process. And on the other side of this Harvard has consistently denied the discrimination
claims, explaining that, while race is taken into consideration,
it is never the sole determining factor in their admissions process. And before we go into the nitty gritty,
I think it's just important to know that this is a pretty big deal.
This has been widely viewed as a case that could potentially end affirmative action as we know it, which, on the note of affirmative action,
that's where we'll start. For those who aren't familiar, affirmative action was established as a way to help minorities and other historically excluded groups,
specifically in relation to education and employment. The term was first used in legislation in
1961 in an executive order from President John F Kennedy.
But it wasn't until
1978 that the Supreme Court made a landmark decision that shaped affirmative action in college admissions.
And in that case you had a white student by the name of Allan Bakke
who alleged that UC Davis had discriminated against him by twice denying him admission to their medical school when he had better grades and test
scores than minority applicants who had been admitted. And, of note, at that time the school had reserved a certain percentage of its admission places
for minority applicants.
What we saw was that the Supreme Court ultimately ruled that the universities could consider race as one of several factors in admission
but could not impose quotas. And also in 2003 the Supreme Court once again upheld affirmative action ruling that race can be a factor
but it cannot be an overriding factor. And while the SFFA's lawsuit against Harvard is a racial discrimination case,
it's widely discussed as the latest attempt to end affirmative action. And from here,
let's talk about some of the numbers. Harvard receives about 40,000 annual applications and ends up with a final freshman class of only about
1600 students. And the percent of Asian students has been increasing throughout the years. And the breakdown for the class of 2022 is 22.9%
asian-american, 15.2%
african-american, and 12.3%
Latino, with then mainly white students making up most of the remaining half of the class.
And so looking at these numbers the SFFA says that those percentages have been constant because of racial balancing, and claiming that Harvard denies
successful Asian American applicants mainly through manipulation of something they call a personal rate. And so that brings up the question, "Okay,
well, what is a personal rating and why is it important?" And so, for example, when you look at the class of 2019,
8,000 of the U.S.
Applicants had perfect GPAs and more than 5,000 had a perfect math or verbal SAT
score. And so Harvard uses academic information as well as several other variables to decide who gets admitted. Of course, there's a question,
"Well, how does Harvard determine personal ratings?"
Well, for a long time the public really didn't know any of the details. The SFFA's lawsuit has slowly been making its way through
the judicial system and for many years the documents in the case have remained private per Harvard's request
However,
the SFFA pushed for the documents to be made public, and in April of 2018 a judge ordered that a portion of them be
released into the public domain. And so, in June, Harvard published
thousands of records that gave this rare glimpse into how they actually admit students: things ranging from recruitment to alumni interviews,
scoring, and final committee voting. And according to Harvard,
they use what they call a holistic review, something that
Individually assesses each applicant and considers a number of factors. Harvard's expert David Carr, from the University of California,
Berkeley, says the school considers around 200 variables.
So they're looking at things like race, gender, test scores,
but also things like if your parents attended an Ivy League school, your intended career, what percent of your neighborhood speaks only English, and more.
And Harvard's guide book gives admissions officers guidelines on how to score
applications. And so admissions officers take in all of these factors and then they track them with a numerical rating on a summary sheet. For instance,
in the academic section, the scores look like this. A top score would mean a genuine scholar, near-perfect scores and grades, combined with unusual
creativity and possible evidence of original scholarship. The scores between have a range of ACT test scores from highest to lowest, while the lowest
score reads, "Achievement or motivation marginal or worse."
But of all the factors they consider, one most heavily focused on in this case is the personal rating, because, as the plaintiff argues, admissions
officers essentially use subjective assessments and turn them into a score. They're giving scores that measure traits like "grit, leadership, integrity,
helpfulness, courage, and kindness." And, reportedly, these scores are based on an applicant's personal essays,
recommendations, and interview reports. In the guidebook, the scores for personal ratings look like this: the highest score would mean
outstanding while a 4 would be bland or somewhat negative or immature, and the lowest score, a 6, signifies
"worrisome personal qualities." And this case has picked up even more attention since these documents were released because of the information inside.
So what we saw in August is the Department of Justice even got involved, launching an investigation
into Harvard and ultimately backing SFFA.
So on October 15th, the three-week trial began and included testimony from Harvard students and administrators.
But a big part of the trial relied heavily on the data from two dueling economists who used different methods to analyze Harvard's admission process.
SFFA's data came from Peter our CD ocona, a professor at Duke University
who studied six years worth of Harvard's admission data beginning with the class of 2014 and ending with the class of 2019.
And his analysis showed that Asian Americans were actually disadvantaged by the school's administration
process, since they have the strongest academic records of all the other races
but had the lowest personal rating. And, along with the numerical scores, interviewers can also write out brief comments giving their impression of an applicant.
SFFA argues that these comments revealed stereotypical remarks about Asians. SFFA's attorney, Adam K.
Mortara, relied heavily on Harvard's own 2013 internal report that circulated among top administrators
but was never published. And he used that report to try and prove that Harvard was, in fact,
discriminating, knew of it, and did nothing to change it, with Mortara saying the 2013 report "concluded that the school's
administrations office
produces 'negative effects'" on the asian population of applicants. And the investigation found that, in some cases, Asian American applicants were described with terms such
as quiet,
shy, or science or math oriented, also lumping them together with other applicants of the same ethnicity. The court filings and testimony also revealed advantages
for children of alumni, faculty, donors, and recruited athletes, this group making up only 5% of applicants but 30% of admitted students. And legacies
specifically are admitted at five times the rate of non legacies. SFFA also showed a
2013 email where the former dean of the Harvard Kennedy School,
David T. Elwood, he thanked Harvard's longtime Dean of Admissions, William Fitzsimmons, for helping admit a student whose relatives had apparently already committed to a
building. In another email, associate vice president for alumni affairs and development, Roger Pete Cheever, noted that accepting an unnamed
applicant could conceivably lead to the donation of an art collection. SFFA's team also pressed Harvard about the dean's interest list,
which is the special and private list of applicants who were often related to or of interest to top donors. Mortara used these other examples
of bias as a way to prove that Harvard is not entirely truthful and transparent when it comes to their admissions process,
but also still claim that their focus was on the racial
discrimination, and saying that Harvard can replace their methods with alternative policies like placing more weight on socioeconomic
status, eliminating policies that allegedly help white applicants and expanding policies that promote diversity through recruitment. And we spoke to Swan Lee of the Asian
American Coalition for Education about the alternatives that both the SFFA and her organization support and she had this to say: "We – we are, uh,
supportive of using socioeconomic approach to achieve, uh, diversity and we're not against, you know,
the – the colleges considering applicants' personal essays, where they talk about their race-related experiences or
their, uh, personal interests, you know, all kinds of things, anything but the immutable factor that's people's racial identity that they are born with.
That's something they cannot change. Because that's really a race-based tyranny. For example, a lower-income asian-american immigrant's children,
they – they never chose their racial identity and they're born with it
and even though they are suffering and trying to, you know, make it,
trying to make ends meet with their families, they are still treated as some kind of privileged applicants
which they're not at all. I think many of the people who support
racial consideration, it's because they want to help lower-income students and they feel, you know, a lot of African and Hispanic students are lower income.
But in fact,
actually, these students can be more accurately helped if the
Institutions use a socioeconomic approach. There are a lot of social
disparities within every racial group.
So using a racial approach is really just making it easier for the wealthier applicants who snatched opportunities from lower-income applicants
just because they happen to be of the same racial identity. So it's really hurting
working-class students not helping them." So how did Harvard respond to SFFA's arguments in court?
Well,
they brought in their own expert, David Card, who said he found no evidence of discrimination in his analysis, Card saying that the SFFA's
data relies on a false assumption that academic excellence aligns with personal character.
He also said that Arcidiacono's model left out several major
applicant traits that admissions officers consider which he believes skewed his results. For instance,
he said SFFA's data was flawed because they excluded things like parental occupation, intended career,
Interviews, and the personal rating. Additionally, Harvard's lawyer argued that the SFFA's analysis didn't factor in the traditionally favored applicants
we talked about earlier. Right, the athletes, children of alumni, faculty, staff, or applicants on a special Dean's List. And just overall,
they say the SFFA's data just doesn't properly
replicate the acceptance process. And Harvard argued that, if Arcidiacono were to add back in the missing factors, the negative effects Asian American students
see in the admissions process would become statistically insignificant,
and in fact calling his findings implausible and
unreliable, with Card ultimately saying he saw no evidence that Harvard was trying to balance each incoming class by race.
Also to address the 2013 internal report that SFFA says concluded
discrimination, Harvard said that that internal report was preliminary and incomplete and that it actually was done with limited admissions data, with the Harvard lawyers
saying, "SFFA will point to documents prepared by individuals in Harvard's office of institutional research,
which, in SFFA's view, suggests that Asian American applicants were disadvantaged in the admissions process.
But the analysis in those documents was not designed to evaluate whether Harvard was intentionally discriminating and reached no such conclusion."
And they added that later models that account for what they call "the full range of observable information" considered during Harvard's admission process,
they show no negative effect for Asian Americans during the admissions process.
And as far as those stereotypical comments that were discussed in
2013, Dean of Admissions William Fitzsimmons said that that is not consistent with Harvard's mission, saying, we abhor stereotypical comments
"This is not part of our process.
This is not who I am. The entire staff certainly studied this report very very carefully to make certain it did not engage in racial
stereotyping." And we also saw Harvard's attorneys push back against SFFA's questions about their treatment of donors, legacies, and athletes, arguing that it
Is irrelevant to this case about racial discrimination,
Fitzsimmons even defending Harvard special treatment of applicants with donor ties as, quote, "important for the long term strength of the
Institution." Harvard's legal team also leaned on something very important during this case: Supreme Court precedent.
They argue that the school's
Consideration of race was completely legal. Attorney William Lee argued that the benefits of diversity were on trial and said that the lawsuit was aimed
at ending the decades-old effort towards racial diversity in the
educational sphere. Lee also introduced eight current and former Harvard students to make the case that the university's current admissions system is beneficial to student
life and necessary to create diversity on campus,
also pointing out that the plaintiffs remedy would in fact decrease
diversity, particularly among black and Hispanic students. Also saying that considering students' socioeconomic
status instead of race, as the plaintiffs are advocating, that would reduce the number of African American and Hispanic
undergraduate students by one thousand over four years. And, in his closing remarks, Lee mentioned that the SFFA group had previously challenged affirmative action
with a white plaintiff and was now simply recruiting
Asian-Americans in their latest effort. And so, on that note, there is the question. Is this just a backdoor attack on affirmative action?
Well, a lot of affirmative action supporters think so since the Asian-American plaintiffs have chosen to remain anonymous to avoid harassment for their involvement
there's a man by the name of Edward Bloom who has become the face of the trial. And Ed Bloom is a conservative activist and
founder of the SFFA and it's true
he has brought a series of lawsuits against racial policies up to the Supreme Court. In 1995,
he was part of a group that brought Bush v Vera before the court, successfully convincing the court to redraw several majority minority
electoral districts in Texas. Bloom was also involved in Shelby County v Holder, the case which removed a portion of the Voting Rights Act in
2013.
He's probably most widely known for his work in the Abigail Fisher case. And Fisher, if you don't know, is a white student who sued
the University of Texas at Austin over affirmative action, although she ultimately lost her long-running case in 2016.
But while that may have failed, Bloom had other irons in the fire. In April of 2014,
he launched a series of websites calling for students to send him their stories of being rejected from top universities.
Right, sites
like harvardnotfair.org,
uncnotfair.org... And each site featured a student along with the text that says that they may have been denied because they are,
quote, "the wrong race." So that's why you have people saying this is the latest swipe at affirmative action.
However, many still argue that the SFFA's goal of removing race consideration will not actually eliminate Asian discrimination.
We spoke with Kimberly West Falken, a professor of law at Loyola Law School teaches constitutional law.
She's closely followed the lawsuits filed by Ed Bloom in the past and we asked her about the SFFA's goal for removing racial
considerations from Harvard applications. "If indeed this were a lawsuit that was part of a broader
pro-civil rights
vindication of the rights of Asian Americans, you would expect there to be a laser focus on the admissions practices
I just outlined, the admissions practices such as legacy admissions, recruited athletes,
Dean's List applicants, and the the children of faculty and staff. If your goal though is to
attack race-based affirmative action,
you... you bring up those other issues only as a peripheral point and
you try to confuse the average person with the notion that, well, any kind of race consciousness
must be race discrimination
And so, if admissions officers are considering race to include African-Americans and Latinos,
that must necessarily be what's causing the discrimination against Asian-Americans.
And so it's really a bait and switch that has been immensely effective for decades.
So what you achieve if you win that goal is you can no longer consider race for that purpose of including
African-Americans and Latinos, but you've left standing, um, all of the other policies that very intuitively
seemed – would seem to be the things that are really harming Asian-Americans." And on the concern over the personal rating,
she said this: "So, I think the discrepancies and disparities with respect to personal ratings is a very legitimate grounds for
challenging Harvard's policy as potentially discriminating against Asian-Americans.
But, again, it has nothing to do with the consideration of race for inclusion. It's a totally different
policy. It's a totally different aspect of the policy." And regarding the argument around socioeconomic policies as replacements to the current system. She said,
"Socioeconomic affirmative action is
completely open as a policy option for any university.
So to say that we need to sue Harvard and ban race-based affirmative action or any
consideration of race,
even for the purpose of including for any university in the United States of America in order to pave the way for socieconomic
affirmative action is
one of the biggest fallacies that the opponents of race-based affirmative action have long peddled because they want to present it as an either-or proposition.
So, where are we now? Why does this matter?
Well, the case has been put before Judge Allison D burrows who will likely make a decision early next year.
However,
experts say that this case is very likely to be appealed to the Supreme Court, which means an outcome for this case could set the
stage for college admissions across the country. And with this prospect of it going to the Supreme Court,
we reached out to Vikram Umar Dean of the University of Illinois College of Law and asked about the possibility of this case changing affirmative
action. And in an e-mailed statement to us,
he wrote, "If the court does take this case, some fear that with justice Cavanaugh replacing Justice Kennedy,
that there are now five votes to essentially eliminate race-based affirmative action,
but that's also what they expected in
2016 when Justice Kennedy surprised folks. There a lot of ways the court could rule for the plaintiffs for the case without abandoning
race-based affirmative
action. A court could tell Harvard not to use the personal factor categories if the Court finds no good explanation for their use without saying
that minority race status can ever be a plus factor."
And with all of that said, we end up here.
The future of affirmative action is still unclear. That said, with this story, though,
the question I want to pass off to you is what outcome would you like to see? Do you believe the race should be considered?
in the admissions process, and do you think the way that Harvard is using race as of now is a problem? And also,
what are your thoughts around the legacy admissions? Because, at least number-wise, that seems to be one of the biggest things here.
Yeah, let me know what you're thinking in those comments down below.
But with that said that is the end of this extra morning news video. If you liked it, you like getting this double dose, let
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But with that said, I hope you have a fantastic day.
I love yo face and I'll see you later today on today's brand new Philip Defranco show.