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The briefs — 82 pages from Harvard and 86 pages from the plaintiffs, Students for Fair Admissions — were filed Wednesday in U.S. District Court in Boston after a high-profile trial in October and November.
The basic claim by the plaintiffs, a group representing Asian-American students rejected by Harvard, is that the university has systematically discriminated against Asian-Americans by holding them to a higher standard than other applicants. Harvard argues that in trying to compose a diverse class, it considers each applicant as an individual and does not discriminate.
The case could change the way colleges across the country conduct admissions. The latest papers lay out the crux of the dispute: The plaintiffs claim that Harvard systematically and knowingly discriminated; the university counters that it did its best and the students it admitted were the result of a normal selection process.
Here are some of the points addressed in Wednesday’s briefs. The judge, Allison D. Burroughs, is expected to deliver a decision in several months.
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Stereotyping or accurate assessment?
The plaintiffs argue that Harvard has been racially stereotyping Asian-Americans for decades.
They cite a 1990 report by the U.S. Education Department’s Office for Civil Rights, finding that admissions officers had repeatedly characterized Asian-American applicants as “quiet, shy, science/math oriented, and hard workers.”
They argue that the practice has continued.
Harvard counters that out of 1,591 pages of documents reviewed in court, the plaintiffs were able to find only two handwritten notes that described individual Asian-American applicants as “quiet.”
Such comments, Harvard said, may have been an accurate reflection of the applicants, not stereotypes but “unbiased assessments.”
How much diversity is enough?
The plaintiffs supported an admissions system that would disregard race in favor of socioeconomic factors, like poverty, geography and other indicators of lack of opportunity.
In its brief, Harvard said that if it eliminated all consideration of race and other preferences, the African-American share of the class would decline to 5 percent from 14 percent and the Hispanic share would decline to 9 percent from 14 percent.
The plaintiffs say that Harvard could achieve levels of racial diversity close to what it has now if it were to eliminate preferences for the children of alumni, donors and staff, while allowing for a slight fall in SAT scores and a significant drop in the percentage of wealthy students.
Is statistical evidence enough?
The plaintiffs argue that statistical analysis shows that Asian-Americans as a group have better academic and extracurricular credentials than white applicants, but are penalized by a biased personal rating.
Harvard disputes the evidence offered by the plaintiffs but says that even if it were valid, it would not be enough to show that any disparate impact on Asian-Americans was intentional.
“Even though courts have recognized that statistical evidence generally cannot prove discriminatory intent, SFFA has repeatedly conceded that statistical evidence is the core of its intentional discrimination claim,” Harvard’s brief says, referring to the organization that filed the suit.
Where is the smoking gun?
Harvard says there is no evidence that the admissions committee — with about 40 members of diverse backgrounds — engaged in some kind of conspiracy to discriminate against Asian-Americans.
The plaintiffs say in this day and age, discrimination is often subtle and insidious, and people know better than to leave proof of it behind.
If Harvard were serious about avoiding racial bias in admissions, the plaintiffs contend, it would have instituted bias training, but it did not.
“Harvard’s failure to properly instruct admissions staff — in writing or even orally — as to when and how race should be used in evaluating applicants made matters worse,” the plaintiffs write.
Last summer, as the trial was approaching, a group of admissions officers recommended changes to the rules for evaluating applications that appeared intended to warn against racial and ethnic stereotyping.
The plaintiffs see the changes as a tacit admission that Harvard knew it needed to do better. Harvard says it was merely codifying what had long been the unspoken rules.
“Once this record became public, a group of admissions officers pushed for changes designed to counteract Asian-American stereotyping. Those changes included a new written instruction on how and when to use race that Harvard’s leadership adamantly claimed was unnecessary, as well as revisions to the criteria for assigning the personal rating that is sensitive to the stereotype that Asian-Americans are introverted,” the plaintiffs say in court papers. “That these individuals — unlike Harvard’s leadership — recognized the need to takes these steps speaks volumes.”
What about unconscious or implicit bias?
During the trial, the plaintiffs argued that there was evidence of unconscious bias in admissions.
In the latest brief, Harvard says that if it was bias then Asian-American legacies (children of alumni) would be less likely to get in than white legacies, but they are not.
The plaintiffs reply that members of favored groups, like legacies, are like family, and it would not be natural to discriminate against them.
“There is nothing anomalous about Asian-Americans who are athletes and legacies evading the racial stereotyping that plagues the 98 percent of Asian-Americans who are not lucky enough to be in the club,” the plaintiffs say in their brief.
This article originally appeared in The New York Times.