In his first full-length sit-down interview with The Crimson, University President Lawrence S. Bacow wanted to make one thing absolutely clear: at Harvard, “we don’t discriminate against anybody.”
He was referencing a four-year-old lawsuit that alleges the College discriminates against Asian-American applicants. Though the stakes are high — the suit could decide the fate of affirmative action in the United States — Bacow is, for now at least, unworried. The brand-new president said he is “confident” Harvard will prevail in court when the suit goes to trial on Oct. 15, though he is unsure what may happen if the case reaches the Supreme Court.
Anti-affirmative action advocacy group Students for Fair Admissions brought the lawsuit against Harvard in 2014, during the latter half of former University President Drew G. Faust’s tenure. Weeks before she left office this summer, the legal battle escalated dramatically when hundreds of pages of court documents revealing intimate details of Harvard’s admissions process became public.
Some revelations drew national headlines — including the fact that the University's internal research arm produced a confidential report in 2013 that concluded the College's admissions process disadvantaged Asian Americans. The study, which was circulated among top administrators but not released publicly, asserted that Asian-American applicants suffer "negative effects" not experienced by candidates of other races who apply to Harvard.
Bacow said in the interview Wednesday that he does not believe any of the documents released over the summer — including the details regarding the report — prove the College discriminates against Asian-Americans. Harvard has repeatedly denied all allegations of discrimination.
“There have been hundreds — I think a hundred thousand documents — that have been turned over through discovery and countless individuals have been interviewed under oath and there is no evidence of any intent to discriminate, policy of discrimination, limitation on the number of students admitted from any ethnic group,” Bacow said.
Bacow was serving as a member of the Harvard Corporation — the University’s highest governing body — when the school's research research office produced and offered the report to Harvard high-ups in 2013. But he said Wednesday that neither he nor the Corporation as a whole ever examined the report, dubbing it one of many internal research documents that failed to make its way onto the Corporation's jam-packed agenda.
“I only became aware of this through the lawsuit,” Bacow said of the report.
He added that the internal study is a draft that relied on “incomplete data,” characterizing it as “a cursory effort.” Harvard lawyers have outlined similar arguments in court, asserting that the 2013 report was "incomplete" and "preliminary" and never intended to definitively evaluate "whether Harvard was intentionally discriminating."
Though the trial has yet to begin, Bacow said he expects the real contest will play out in front of the Supreme Court.
If Harvard wins in the October trial — as Bacow predicted it will — and SFFA decides to appeal, the case will proceed to the United States Court of Appeals for the First Circuit. If Harvard wins there, too (and Bacow said he is “confident” it will) a second appeal would propel the case to the Supreme Court.
The Court has ruled in favor of race-conscious admissions policies in the past, holding up Harvard’s system as a model.
But, pending the results of a confirmation hearing slated to be held Thursday for President Donald Trump's embattled nominee Brett M. Kavanaugh, that could change. Kavanaugh's appointment would shift the Court to the right — and conservative America has long sought to end affirmative action in college admissions.
Bacow said the Supreme Court’s ruling in the suit would have implications not just for Harvard, but for all of higher education.
“If the Supreme Court wants to make new law, they will make new law. If they apply existing law, we will win,” Bacow said. “If they make new law, we’ll have to see what law they make.”
Bacow noted SFFA's founder Edward Blum has openly admitted that he wants to cancel the consideration of race in universities' admissions processes — and has sought to do so before.
"I think there's a lot at stake here," Bacow said.
Legal experts are divided over whether the case will wind up in the Supreme Court. Some have argued that the court may be hesitant to take on the case, given it has offered similar decisions in the past.
Both SFFA and the University have martialed large bodies of paper evidence to make their respective cases. In court, Harvard plans to call as witnesses top administrators including Faust, Dean of the College Rakesh Khurana, and Dean of Admissions William R. Fitzsimmons ’67.
Bacow said he will not testify at the trial because the admissions policies under fire date to well before he assumed Harvard's top job.
As things heat up in coming months, Bacow said the University is working to ensure its perspective remains part of the national conversation.
“Do I wish people had written about other things about Harvard? Of course,” he said. “But I do think that we’re working hard to make sure that our side of the story gets out.”
—Staff writer Kristine E. Guillaume can be reached at firstname.lastname@example.org. Follow her on Twitter @krisguillaume.
—Staff writer Jamie D. Halper can be reached at email@example.com. Follow her on Twitter @jamiedhalper.