A federal court upheld affirmative action at the university. Now it needs to stop admitting so many legacies and athletes.

Colonial-style buildings opening onto an immaculate lawn.

Harvard College Admissions Visitor Center in Boston.

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On Tuesday afternoon, a federal court in Massachusetts upheld Harvard University’s use of race in admissions as constitutional. Judge Allison Burroughs ruled that the school’s race-conscious application process does not unduly burden Asian Americans, as a lawsuit alleged, and allows it “to achieve a level of robust diversity that would not otherwise be possible, at least at this time.” Although the plaintiff, Students for Fair Admissions, has indicated that it will appeal the decision all the way up to the Supreme Court if necessary, Burroughs’ ruling is a win for affirmative action. But it doesn’t let Harvard off the hook.

Conservative activist Edward Blum, the founder of SFFA, explicitly engineered the lawsuit to abolish affirmative action, which would be a major change to college admissions that would primarily help white applicants to the detriment of diversity in universities’ student bodies. The lawsuit refashioned long-running anxieties that Asian Americans harbor around discrimination in college admissions as a tool to dismantle the entire project of affirmative action, which has crucially helped people of color find their footing in some of the country’s most elite and powerful institutions.

Yet for all the lawsuit’s ugly intentions, it did ultimately force Harvard to divulge data on the admissions process that’s normally kept under wraps. While it’s troubling that it took an attack on affirmative action to learn what we did, the information is valuable nonetheless. As I’ve written before, the most alarming revelations from the trial disclosures had to do with “personal ratings” and the preference for athletes, legacies, applicants placed on a dean’s list (often because of their parents’ donations), and the children of faculty—taken together, a group that the university refers to as ALDC. These facets of the admissions process have little to do with affirmative action but nonetheless put Asian Americans at a disadvantage.

The admissions data that Harvard released as part of discovery indicated that Asian American applicants consistently received the lowest scores on the personal rating, which is based on a combination of subjective factors like the personal essay, interviews, and qualities such as “humor” and “courage.” Race is not supposed to be a factor in the personal rating, and for good reason—you wouldn’t want race influencing whether an admissions officer sees an Asian applicant as “quiet” or “hardworking.” Burroughs wrote in the ruling that “the reason for these lower scores is unclear, but they are not the result of intentional discrimination” and suggested that they are rather a result of “implicit biases among some admissions officers.” She recommended that Harvard conduct “implicit bias trainings for admissions officers” and maintain “clear guidelines on the use of race in the admissions process.” To be sure, personal ratings do include valuable information about a candidate, and an admissions system without recommendations and application essays would be woefully lacking. Hopefully, Harvard will now keep a closer eye on how the scores can also allow implicit bias to seep into its decisions on whom to admit. As the trial was going on, the university notably amended its admissions guidance to more clearly advise admissions officers against factoring race into the personal ratings. Harvard also overhauled its personal rating criteria for the Class of 2023, steering application officers away from using culturally biased descriptions. These are welcome developments.

What’s more pressing, though, is Harvard’s practice of favoring ALDCs, which became an issue during the trial because the plaintiff suggested that Harvard could achieve its current levels of diversity by simply eliminating these tips, rather than relying on affirmative action. Supreme Court precedent dictates that universities must pursue race-neutral alternatives to the extent possible in their mission to foster diversity in the student body.

ALDCs make up only 5 percent of applicants but 30 percent of the admitted class. They enjoy an admission rate of about 45 percent, as opposed to the normal rate of 4.5 to 5 percent, and account for more than 40 percent of the white student population. These preferences benefit white and wealthy applicants over people of other races but especially over Asian Americans, who are the least likely to be ALDCs. As the opinion observes, “ALDCs are disproportionately white, with 8% of white applicants being ALDCs compared to 2.7% of African American, 2.2% of Hispanic, and 2% of Asian American applicants.” This is a mechanism separate from affirmative action that discriminates against all people of color and, to a certain extent, against Asian Americans in particular. In sum, Asian Americans receive the highest extracurricular and academic scores but also the lowest personal scores, and they’re especially underrepresented among ALDCs. So in this sense, fears about anti–Asian American bias are not completely unfounded.

Athletes and legacies make up most of the ALDCs who are admitted, and research indicates that advantages for these two groups have actually been increasing over time. Legacy admits get in at a rate five times that of nonlegacies. From 2010 to 2015, legacies accounted for more than 20 percent of the white student population at Harvard, compared with 7 percent of the Latino population, 6.6 percent of the Asian American population, and 4.8 percent of the African American population. Favoring the children of predominantly wealthy alumni serves to entrench racial and economic privilege at the university, and proponents of diversity should call on Harvard to end the practice.

Harvard’s athletic recruiting practices also overwhelmingly favor the white upper class. A recent paper using data obtained during the trial found that nearly 90 percent of recruited athletes won acceptance to Harvard between 2009 and 2014. (The paper’s lead author, Duke economist Peter Arcidiacono, was an expert witness against the university during the trial, but the plaintiff did not pay him for this particular study.) The paper further found that 69 percent of athletes accepted to Harvard were white. What’s more, Slate’s Jordan Weissmann points out that 20 percent of athletes at Harvard come from households earning more than $500,000 a year, according to a Harvard Crimson survey for the Class of 2019.

A friend suggested Harvard could be fairer to Asian Americans by also recruiting for ping-pong or badminton. I find the proposal no more absurd than the university’s current practice of recruiting for sailing.

The Atlantic’s Derek Thompson interpreted these finding as proof of “the American scam of rich-kid sports.” Rich-kid sports are, perhaps not coincidentally, also white-kid sports. Though Harvard does recruit for sports that are generally available throughout the country to kids from a variety of backgrounds, like football and basketball, it also recruits for sports that require expensive equipment and training. Skis, oars, lacrosse sticks, and squash rackets aren’t a common sight in low-income high schools.

Harvard shouldn’t get rid of all preferences for recruited athletes, but it should look at the kinds of sports it favors in its admissions process and how many spots are portioned out to each team. While I was covering the trial back in March, a friend suggested that Harvard could be fairer to Asian American applicants by also recruiting for ping-pong or badminton. It was meant as a joke, but I find the proposal no more absurd than the university’s current practice of recruiting for sailing.

The case for ditching, or at least limiting, ALDC preferences is strong. The problem with the plaintiff’s embrace of that argument was trying to toss out affirmative action at the same time.

Burroughs found that simply getting rid of the ALDC system, as the plaintiff proposed, would not be “a race-neutral alternative that would obviate the need for considering race in admissions.” She notes that eliminating these preferences would indeed increase racial and socio-economic diversity in the student body, but the impact would not be sufficient to replace affirmative action. The ruling reads, “The Court notes that reasonable minds can differ on the importance of college athletics, alumni relations, and admitting the children of faculty and staff, but takes no position on these issues other than to note that these are topics best left to schools to figure out for themselves.”

Reasonable minds might want to consider that Harvard could keep its affirmative action policies in place while also eliminating, or radically reforming, its preferences toward ALDC students. The question before the court was specifically whether one action could replace the other—but why not push for both? If Harvard really does “embrace and celebrate diversity,” as it’s claimed throughout this trial, the university needs to contend with ALDCs as a force that undoubtedly stifles that diversity.

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