1st Circuit Establishes The “Harvard Says So” Doctrine

When Allan Bakke claimed he was the victim of reverse discrimination, the Supreme Court held that affirmative action, using race as one of many factors to achieve the overarching pedagogical good of having a diverse student body, a compelling state interest as was expressly held in Fischer, was not unlawful. Not because it was reparations for past discrimination, and not a quota.

At the time, it was highly controversial, enough so to cause a fractured plurality opinion, but the use of race as a consideration, among others, seemed on the right side of a line that prohibited discrimination based on race. Back then, the argument that discrimination favoring an “oppressed” race was itself a favored goal. The idea would have been considered ludicrous and unlawful. But Bakke never drew a real line between the use of race as a “plus” factor and unlawful discrimination.

As the years went by, and “diversity” became more rubric than rationale, race became a more institutionalized factor, until it reached the point where Harvard, miraculously, managed to maintain what would, to any outside eye, appear to be a quota system, where its admissions managed to matriculate a class along racial lines, year after year. It didn’t claim to have a quota system, and vehemently denied that it imposed quotas. It just turned out that way. Go figure.

One of the groups most severely affected by this scenario was Asian students. Whether it was the Tiger Mom thing or just a cultural ethic of working harder, students with great grades, scores, plus, sought admission to one of the nation’s premier colleges. Harvard, unlike lesser schools, had a huge universe of applicants from which to choose their study body, and it was exceptionally competitive. If you aspired to go there, you could get better grades, higher scores, play violin on the stage of Carnegie and find a cure for cancer, but you couldn’t change your skin color or nationality.

There was nothing left to do but sue when, year after year, superlative Asian students just couldn’t make the cut, no matter what they did, and were passed over for students who might have compelling stories, but not nearly as accomplished. Harvard didn’t deny their sterling applications, but claimed that they just weren’t sufficiently personable. You know, one of those impossible to define, incapable of pinpointing, characteristics that could always be claimed and never proven one way or another. As the burden of proof was on the plaintiffs suing Harvard, it was their responsibility to show that Harvard was violating Title VI and the Equal Protection Clause by engaging in racial discrimination against Asian students by compelling them to compete among themselves for a limited number of seats, because the rest were held for people of other races to “balance” the student body and achieve diversity.

The First Circuit, with the painful reminder of how computers have allowed judicial opinions to grow in length without growing in substance, issued a 104-page opinion affirming the district court’s holding that Harvard did not violate the law, but merely took race into account in its effort to achieve the compelling interest of diversity. After page upon page of excruciatingly uninformative and nonspecific fuzzy language about Harvard’s good intentions, the court concluded that Harvard’s use of racial discrimination against Asians was the good kind, not the bad kind. The problem is that for all the words murder, pages turned in search of some limiting rationale for the holding, there was none to be found.

“Harvard says so” appears to be sufficient.

As for process, the Khurana Committee relied on input and data from students, alumni, faculty and staff, and other stakeholders in Harvard’s admissions process. It considered how a diverse environment prepares Harvard’s graduates to enter the public and private sectors and how those sectors prefer graduates who have been exposed to a wide range of ideas and people. In our view, at least these specific goals were articulated in the Khurana Report: (1) training future leaders in the public and private sectors as Harvard’s mission statement requires; (2) equipping Harvard’s graduates and Harvard itself to adapt to an increasingly pluralistic society; (3) better educating Harvard’s students through diversity; and (4) producing new knowledge stemming from diverse outlooks. These goals make clear that Harvard’s interest in diversity “is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” but “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Parents Involved, 551 U.S. at 722 (quoting Grutter, 539 U.S. at 324-25). Race is one piece of Harvard’s interest in diversity. It is “considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.'” Id. at 723 (quoting Grutter, 539 U.S. at 330).

Of course, there was never any question that diversity was a good thing and satisfied the compelling state interest prong of strict scrutiny. The blooming flowers of diversity were beautiful, but the question was how far it could go before it crossed the line from a “plus” factor into racial quotas, balancing and unlawful discrimination.

Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state
interest simply by relabeling it ‘racial diversity.’


However, universities may pay “some attention to numbers” without “transform[ing] a flexible
admissions system into a rigid quota.”

A mere 42 years after the Supreme Court ruled against Bakke, there is still no answer as to where that line may be and when that line is cross. Harvard wraps its racial considerations up in the sweetest of purposes, and denies that it would ever engage in a system of racial balancing, rigid quotas.

SFFA argues that, focusing on the classes of 2009 to 2018, “the percentage of [Harvard’s] class by race always fell within a narrow range.” For these classes, the share of Asian Americans admitted ranged from a low of 17.5% in 2013 to a high of 20.3% in 2016 with various percentages in between.

Harvard, in contrast, argued that the period from 1980 should be considered, when the class grew from “a low of 3.4% in 1980 to a high of 20.6% in 2019.” The Court agreed with Harvard. But as much emphasis on stats as appeared in the court below and is repeated by the First Circuit, it ultimately comes back to “Harvard says so.”

The district court considered this evidence and found that it “likely over emphasizes
grades and test scores and undervalues other less quantifiable qualities and characteristics that are valued by Harvard and important to the admissions process.”

It’s hard to argue with “less quantifiable qualities and characteristics,” which had long been a hallmark of Harvard denying admission to students because “they’re not our type.” But it’s not racial discrimination because Harvard says so.

23 thoughts on “1st Circuit Establishes The “Harvard Says So” Doctrine

  1. grberry

    You made it through all 104 pages? I gave up about halfway through. Did they ever engage with the fact and argument that giving one race a thumb on the scale always is to discriminate against others? Or did they ignore that?

  2. Bryan Burroughs

    So, I’m guessing if an employer or university were found to be repeatedly rejecting black and latino applicants based on “personality scores,” this court would say “well, that’s ok,” right?

    1. Rengit

      It’s not the same people making the decisions, but when statistical data shows that employers are rejecting applications or making promotion decisions based partially on subjective and/or non-quantifiable criteria, and the statistics show that black or hispanic people are passed over more frequently, that’s supposed to create a strong but rebuttable presumption of racial discrimination. Now, in college admissions, when subjective, non-quantifiable factors are repeatedly benefitting black and Hispanic students, that’s a-ok and in fact it would be small minded to only consider test scores and grades.

      For all the fretting over Ibram Kendi’s ideas, it appears they are already in action.

  3. Miles

    You have long supported educational diversity, even in physics as I recall, but is there a line you would draw between where race contributes and where it’s unlawful discrimination?

    1. SHG Post author

      In my imagination, it comes down to ceteris paribus, race being the only distinction. Race would never be a substitute for accomplishment, but a plus to accomplishment.

      1. Noel Erinjeri

        It’s never ceteris paribus–“accomplishment” is such a subjective thing that there will always some distinction to be made between any two applicants. The only question is which is to be Accomplishment Evaluator.

        1. SHG Post author

          True, but within relative parameters, perfect grades, perfect scores, glowing recommendations, national-level accomplishments in an extracurricular area. There are always differences (Olympic soccer player v. Cellist with the Philharmonic), but comparable. Then there’s fun at parties, dances well, knows all the words to Kumbaya and no serious prior felonies.

  4. Ray

    The irony here is that the elite schools which are denying students admission to create diversity may actually have done them a big favor. Looking at the quality of the curriculum, and the recent admission cheating scandals I’m left to wonder just what advantage there will be with a degree from one of these schools. Harvard says “no thanks” then be at the top of your class at Bowden, Colby, Colgate, or Rice. You’ll be a leader in your chosen field, at a great school that wants you to be there and you may get a better education. Just stay away from the critical legal studies courses when you go to law school, take the evidence course instead.

      1. Ray

        My college room mate is a bit of a mucky muck in a prominent federal agency. Not long ago he was involved in going to various law schools to interview candidates for employment with his agency. He went to my law school–a state law school–and was very impressed with both the beauty of the campus and the quality of the students. He had also visited the big name law schools. He was very unimpressed with the what he saw at some of these schools–attitude, sloppy appearance, sense of entitlement, etc… (he went to a very good law school himself, so I don’t think this was envy bias on his part). He wasn’t confused, things are changing.

  5. delurking

    There is a logical inconsistency in all of these discussions that supporters of diversity just tiptoe around. First let us posit that having a racially diverse student population, so students can learn from each other about various cultures, viewpoints, etc., is an important pedagogical goal. Next, try to devise an admissions process that accomplishes the diversity goal but is not functionally equivalent to a quota system.

    I cannot. Maybe the quotas you set are not equal to the representation of the various races in the overall population or the applicant pool, but they are still quotas (i.e., “Race A is 10% of the pool, but we only need 5% of the student population to be race A to gain the pedagogical benefit of their presence”). Maybe they are “soft” instead of “hard” (i.e., “we would like 5% to be race A” vs. “At least 5% must be race A”). No matter what you do, by the time you’ve admitted a whole class, some people who are more qualified in every area except race will be left out and some other people who are less qualified in every area except race will be in. If your admissions process succeeds at the goal of creating a diverse population, however you define “diverse population”, it will year after year produce results that are indistinguishable from a quota system.

    I say this as a supporter of the basic premise that a diverse student population is pedagogically important, and that racial diversity is a reasonable proxy for cultural diversity.

      1. delurking

        Indeed, that is just my current understanding. I would be happy to read someone else’s explanation of an admissions process that ensures diversity but does not result in an outcome indistinguishable from a quota system.

        1. SHG Post author

          There’s a strong likelihood that the Supreme Court will do just that. And if they didn’t have motivation enough before, knowing you would be happy to read their decision will certainly compel their grant of certiorari.

  6. Steve King

    I sincerely thank you for reading 104 pages of intellectual masturbation so the rest of us would not have to. You deserve a drink or three.

  7. KP

    ” superlative Asian students just couldn’t make the cut, no matter what they did, and were passed over for students who might have compelling stories”
    ..and then it came to pass that America was full of mediocre but broadly diverse graduates, and Asia won the space race, the only race worth worrying about…

    1. SHG Post author

      Diversity doesn’t have to lead to mediocrity, but when diversity becomes more important than excellence, that’s what happens.

  8. CV C Shaw

    Remember Lincoln’s Gettysburg address ? Two of the most important phrases from the same are: 1. “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.” ; and, 2.”It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

    The Federal Courts have forgotten the lessons of this speech by Lincoln with regard to affirmative action, diversity, and reverse discrimination. Most affirmative action and reverse discrimination are based upon gender and not race.

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