HARVARD’S SINS OF ADMISSION

“Race-morming is essentially what it is,” says Harvey Mansfield, a professor in the department who is critical of its admissions policies. ” Blacks are compared with other blacks and not really with whites; and there are separate funds as well, the purpose of which is to keep the professors on the admissions committee from actually feeling that they’re rejecting someone better qualified when they choose on the basis of affrmative action. But, of course, they are.”

Gerry received full graduate-school tuition and a $ 10,000 a year stipend toward a political science degree at Yale, where he has enrolled in a highly selective, joint poll sci/law school degree program just this week. So while his rejection by Harvard will not cost him an academic career, the fact that Gerry was such a successful applicant to other prestigious programs raises questions about Harvard’s admissions criteria. “If I hadn’t gotten into a number of good political science programs, I would have imagined that there was something wrong with my application, or perhaps that competition was particularly stiff,” Gerry says. “But the fact that I got into all these other excellent programs and got a flat turn-down from Harvard was a bit unusual. Something was funny about the way my application was handled.”

Funny indeed. The department’s racially selective admissions policies are scrupulously described in an academic article published in the December 1993 issue of PS: Political Science and Politics magazine. The article is the work of Gary King, a tenured professor in the department who had served four years on its admissions committee, two of them as chairman. King, a statistical expert, decided to turn his academic skills toward an examination of the various admissions practices he witnessed and administered at Harvard. His article, “The Science of Political Science Graduate Admissions,” is remarkable in the way it cheerfully and scientifically provides a smoking gun to any student, like Gerry, who might wish to challenge the University’s policies.

In a page-long description of”the Harvard Admissions Process,” King describes in great detail the three-level process the department employs in evaluating applications. Here’s how it works. When students apply to Harvard’s Graduate School of Arts and Sciences (GSAS), their applications arrive at a main graduate-school admissions offce. This offce affixes a bright green sticker and a pink status sheet to any application from an ” underrepresented minority” before it sends the application on to a specific depart- ment. The government department requests that the green sticker and pink sheet be removed, however, so that the applications can be read blind. The six members of the department’s admissions committee divide the 600-700 applications among themselves and proceed to pare them down to about 100. These 100 remaining applications are then read by all of the committee members, and, after a day-long meeting, the list of 100 is narrowed down to around 45 — what King calls the “primary list.” And then the trouble starts.

After the primary list is compiled, green stickers are reapplied to the minority applications from among the list of 100. Then the minority candidates who did not make the first merit-based cut — King’s “primary list” — are compared solely among themselves. Those who are deemed able to “make it through” the program are then accepted.

As King puts it: “After the primary list is complete, we go through the admissions files of all remaining minority applicants to ensure that we do not miss anyone who meets these same criteria. Then, according to departmental custom, we admit, in a separate Affirmative Action category, any minority applicant who we believe would complete the program if admitted.”

It seems an obvious conclusion that standards are lowered to accept these applicants. And, indeed, King tells us just that: “If we applied the same rule we are required to use for our Affrmative Action list (admitting those we think would graduate) to all applicants, we would admit 200 to 300 students a year.” But only about 35 to 45 graduate students are admitted annually to Harvard’s government department.

The practices King describe, s are dubious not only under the Supreme Court s landmark 1978 decision in the Bakke case, but also according to a number of recent Supreme Court and lower-court precedents. In Bakke, the Supreme Court held that to further the goal of racial diversity, university admissions committees could consider race as a “plus factor” among equally qualified candidates, but not as an exclusive factor for admission. Bakke involved the equal protection clause of the Constitution, which has been interpreted to apply only to state colleges and universities (Allan Bakke himself sought admission to the University of California). But in 1964, Title V! of the Civil Rights Act extended those same legal principles to private universities, like Harvard, that accept federal funds.

In the years that followed Bakke, educational institutions, public and private, struggled to encourage diversity without resorting to quotas or set- asides. That proved diffcult. The problem was that, with the exception of Asian-Americans, most minorities score significantly lower on standardized tests and have substantially lower grade point averages than white students. As a result, race cannot simply be a “plus factor” among otherwise equal candidates; it has to become a determinatire factor, at least in some instances, if universities are to satisfy their goals of racial diversity.

Ironically, this very conundrum was pointed out by Harvard, Stanford, Columbia, and the University of Pennsylvania in a friend-of-the-court brief filed in the Bakke case. “The unfortunate fact of life in this country is that the applicants who are members of minority groups tend, as a general matter, not to score as well as whites on the standardized tests to which reference is made in the admissions process.” According to figures from the Consortium for Financing Higher Education, black students admitted to Harvard College in 1995 had mean SAT scores of 1290 — 110 points below the mean score of admitted white students. The score gap at Berkeley was closer to 300 points.

“People treated Bakke as an invitation to fraud,” says Lino Graglia, professor of law at the University of Texas Law School. “If you’re going to get a significant number of minorities into an institution — which was the point of all this — then the only way you can do it is race-norming. Tipping the balance isn’t going to do anything.”

To be sure, Harvard is not the only university implementing an affrmative- action admissions policy.

Most colleges and universities in the United States have policies in effect that are similar to that of Harvard’s government department, and some are even more invidious. They’ve generally managed to stay out of trouble because they’ve kept their admissions practices shrouded in secrecy. But when policies like Harvard’s have been challenged legally, they often have been held to be impermissible under the equal protection clause of the 14th Amendment, or Title VI of the 1964 Civil Rights Act.

Berkeley’s use of a “special consideration standard” and separate admissions evaluations at its law school was found to be unlawful in 1992. Likewise, the University of Texas Law School’s practice of segregating black and Mexican-American applications from the rest of the application pool and using a separate committee and a lower minimum Texas Index score (a composite of a law-board score and the student’s grade-point average) for admissions evaluations was found to be unlawful last year by a U.S. District Court.

“The point of Bakke that was highlighted by the University of Texas case is that each student must compete with every other student for admission,” explains Graglia. “There must be competition. And race-norming, or a separate evaluation of minority applications, is by definition not competition. Harvard’s program is clearly impermissible.”

Harvard administrators defend the government department’s policies by pointing to the severe underrepresentation of certain minorities in both the student body and faculty. Without affirmative action, they argue, Harvard and every other selective university would become lily-white. They insist that policies to promote a diverse student body are morally laudable, educationally beneficial, and legal. They cite various court holdings to the effect that narrowly tailored affirmative action policies can be justified if they are designed to redress a history of discrimination or to achieve a diverse student body. “We are concerned — we the government department and graduate school — about minority student representation and… ensuring that we are able to enhance the diversity of our graduate class. But there are no targets, no quotas,” says Margo Gilt, administrative dean of the Graduate School of Arts and Sciences. “[We believe] that it is an obligation for this institution to attract, to be aggressive about recruiting and to support [underrepresented minority] candidates while they are here.”

Harvard offcials may believe that promoting diversity is a noble cause, but they are wrong if they think it’s a legally mandated obligation. Harvard, unlike the University of Texas, is not located in a state that in the past employed segregation as a matter of law. Nor has Massachusetts ever been under the jurisdiction of the 1968 court order that obligated certain southern institutions to implement affrmative action policies in an effort to remedy past discrimination.

In fact, Harvard has never offcially discriminated against blacks, Native Americans, Puerto Ricans, or Mexican Americans, the way it once discriminated (by rigid quotas) against Jews and Catholics. Needless to say, Harvard has no program in place to redress past bias against those religious minorities.

“There is absolutely nothing in Title V! which compels Harvard to have affrmative action in admissions,” says Michael Greve, executive director of the Center for Individual Rights. “Harvard never offcially discriminated against blacks. They could have completely race-neutral standards if they wanted to, and nobody could bat an eye. Not the [Department of Education’s Office of Civil Rights. Not anybody. They’re doing this completely voluntarily.” Under current law, it is legitimate for an institution voluntarily to implement a “diversity” program; it is the procedures that Harvard uses to define and achieve such diversity that are questionable. In recent years, the Supreme Court has held that any benign racial preference must withstand a state or federal court’s “strict scrutiny” standard; that is, it must be based on a “compelling interest” and be “narrowly tailored” to achieve that interest. Because these terms were never specifically defined by the court, universities have tended to interpret them broadly.

This year, however, the Supreme Court has emphasized the limitations that these two restrictions impose on affrmative action programs. In Adarand Constructors v. Pena, a case involving the disbursement of federal contracts to minority-owned businesses, the court said that remedial federal affrmative action programs can be upheld only as a means to correct specific, provable cases of discrimination, and cannot be broadly applied to remedy suspected discrimination by society over time. Justice Sandra Day O’Connor’s majority opinion put it unequivocally: “All racial classifications are inherently suspect and presumptively invalid.” There’s nothing in the equal protection clause that suggests that access to government education should be different from access to government contracts.

Even if Harvard is able to use Bakke to justify policies that involve separate but unequal admissions tracks, it still must defend an even more questionable aspect of its affrmative action program: guaranteed full aid for “underrepresented minorities.”

Harvard’s GSAS, as part of its affrmative action program, offers all ” underrepresented minority” students in its various graduate departments full financial aid, regardless of need. This covers full tuition and fees and provides an annual $ 10,920 stipend for at least three years.

It is not unusual for graduate students to receive a financial aid package of this sort. Indeed, at most universities, Ph.D. candidates expect to receive full fellowship packages in addition to paid part-time teaching assignments.

What is unusual about Harvard’s graduate financial aid policy is that, unlike most other hniversities, it claims to be based on need. Non-minority students receive financial aid based on their ability to pay. Hence, they are required to provide personal and parental financial status information in their application as a prerequisite to admission.

Brett Gerry refused to provide that information. He informed all of the universities to which he applied that he would not be able to attend their program without financial aid. Because he had promised his parents that they would not have to finance his graduate education, he refused to disclose their financial resources in his application.

If Harvard really had need-based financial aid for all of its applicants, Gerry’s rejection might have been justified on those grounds alone. But Harvard does not have a comprehensive need-based financial aid program. The GSAS Minority Student Newsletter plainly states that blacks, Mexican Americans, Puerto Ricans, and Native Americans who are admitted to Harvard automatically receive full financial aid, regardless of need, whereas non- minorities must make a specific showing of need. (Interestingly, the general GSAS application, received by all students, omits this information, and refers minorities instead to the Minority Student Newsletter for information about financial aid.) In addition, Harvard offers some scholarships to students-black and white — solely on the basis of merit, and irrespective of need, in order to attract the most intellectually gifted to the university.

H’arvard defends its financial preferences for minorities by pointing out that buying diversity is really no different from buying academic stars: ” Within the Graduate School of Arts and Sciences, they do make many [financial] awards to Ph.D. candidates on a basis apart from need,” says James Hoyte, assistant to the president and associate vice president for equal opportunity and affrmative action at Harvard. “If they perceive that you’re a wonderful candidate for the Ph.D. program, and it appears as if they’re not going to get you unless they buy you — for lack of a better way to put it — they are empowered to go and get you regardless of what your need is. In the same way, if a judgment is made on the part of a Harvard department that they want to have a diversified set of graduate students, and in order to achieve that objective they’re going to have to spend more money for that diversity objective, they go ahead and do it, I’m not troubled by that.”

In other words, Harvard’s approach to recruiting minority students is just like Notre Dame’s approach to finding the best running backs. This rationale may make sense from a marketing perspective. It also may violate the law.

“There’s no federal law that says you can’t give money to smart students. There is a federal law that says you cannot provide money to students differently based on their race,” says Michael Williams, former director of the Department of Education’s Offce of Civil Rights. He is referring to Title VI of the federal Civil Rights Act of 1964, which forbids racial or ethnic discrimination in programs supported by federal funds. And Harvard University accepts significant federal funding. “Unless they can show that this program is for the purpose of remedying and correcting the present effects of [the university’s] past discrimination — and I doubt that’s the argument that Harvard would be making — they cannot provide one track for financial aid for minority students and a separate, very different track for others.”

Harvard officials believe that their financial aid package for minorities is beyond reproach. After all, it’s been around for 25 years. Dean Gill explains that there is a separate fund within the GSAS to support minority scholars. It is completely separate from the financial aid allocation or the tuition reimbursement that departments receive, and it does not affect the level of that funding. Moreover, she claims, admission decisions within each department are made without information about a student’s financial resources. Each department is obligated by University policy to support any student it admits to the full level of that student’s demonstrated need.

Should a department admit in one year more impecunious students than its budget can handle, it will accept fewer students the following year. Says Gill: “Simply because we have funds that have been identified for minority students, we’re not going to support in any lesser degree a [non-minority] candidate who has demonstrated a full need.”

In other words, some financial aid — not necessarily the full packageis available to any non-minority student based on proven financial need; but maximum financial aid is bequeathed to any “underrepresented minority” without even a rudimentary investigation of financial resources. In fact, underrepresented minorities are given larger packages than even the poorest white or Asian students receive. Impoverished white students get full tuition and a two-year stipend; but all underrepresented minorities, even those from affluent families, get “at least three years” of stipend. In other words, a black student from an upper middle class family who attended Andover and Harvard College would qualify for full financial aid (plus a bonus year of stipend) to Harvard’s GSAS, while his white counterpart would not.

Despite Harvard’s complacency, legal storm clouds hover over this policy. The University of Mary- land recently got caught in constitutional quicksand over this very issue. A Hispanic student, Daniel Pod- beresky, complained that the university discriminated against him by offering a prestigious merit- based scholarship exclusively to black students. The 4th U.S. Circuit Court of Appeals agreed with him, ruling in 1994 that the 17-year-old Benjamin Banneker Scholarship was illegally race-specific, despite arguments by university officials that the scholarships are necessary to erase the effects of past discrimination.

University documents obtained by Podberesky’s lawyers showed that 31 of the 76 Banneker scholars from 1990 to 1992 were out-of-state students, for whom redressing past state discrimination would not apply. In addition, no fewer than 42 of the awardees could have afforded to pay their own way through college; only eight scholarship recipients had demonstrated financial need equal to their scholarships. The Supreme Court recently declined to consider the university’s appeal of the case. Therefore, Podberesky v. Kirwan stands as good law.

Harvard cannot even use the University of Maryland’s defense. Unlike Maryland, Harvard was never a segregated campus. And Harvard’s aid package for minorities, unlike Maryland’s Banneker scholarship, is not merit-based; it is based exclusively on race.

What Harvard does have on its side is the Clinton administration, which, despite the Podberesky holding, is doggedly pursuing its own statist agenda. In 1994, Secretary of Education Richard Riley issued a final policy guidance on race-based scholarships. These guidelines claimed to be a revised version of the Bush administration’s proposed guidelines, which were never finalized.

In reality, they turned Bush policies on their head. Most notably, they changed the prior, strict definition of”narrowly tailored remedies” in such a way that virtually any race-specific scholarship now can pass muster. Race- based financial aid is permissible, Riley said, if it furthers the institution’s “interest in diversity” and does not “unduly restrict access” to financial aid for others. The Clinton Department of Education has not revised these policies in light of the Podberesky ruling; indeed, the department’s Office of Civil Rights actually reaffirmed the legality of race- targeted scholarships this past July, even though Podberesky has the force of law, and the guidelines are merely advisory. This is no great surprise, given that the White House joined the University of Maryland as a defender of the Banneker scholarship program.

Despite the Clinton administration’s policy, affirmative action in university admissions and financial aid policies is coming under increasing attack. Americans are increasingly prone to challenge the ethical, constitutional, and sociological implications of racially based distinctions among U.S. citizens. A Gallup poll in March found that 67 percent of Americans oppose scholarships based on race; 57 percent object to affirmative action policies in university admissions.

Some university administrators are beginning to respond voluntarily to these public sentiments. This past summer, the University of California Board of Regents announced its intention to end affrmative action in admissions and hiring. Four of the state’s premier campuses — Berkeley, Los Angeles, Davis, and Irvine — had been admitting all minimally qualified black and Hispanic students without even bothering to review their applications; yet academically strong white and Asian applicants are being routed to second-and third-choice campuses. The University of California is the largest and most prestigious of the country’s public university systems; if its decision passes legal muster, it could initiate the dismantling of similar policies throughout the nation.

Notwithstanding the turning tide of public sentiment, Harvard is unlikely to change its policies freely. Its administrators are proud of its longstanding affirmative action program, which they believe is an ethical imperative. But, as university officials learned in Maryland, Texas, and California, even the most well-intentioned plans can run afoul of the law. All it takes is a student with a grievance.

Elena Neuman is a freelance writer living in Washington.