Investigating Harvard Admissions: The 1990 Education Department Inquiry

As a lawsuit alleging discrimination in Harvard’s admissions practices remains delayed—awaiting a Supreme Court decision on the related affirmative action case Fisher v. University of Texas at Austin—the College’s use of race as a factor in admissions decisions has once again come under scrutiny.

In response to the allegations by anti-affirmative action group Students for Fair Admissions, University President Drew G. Faust has upheld Harvard’s commitment to diversity, pledging a “vigorous defense of our procedures.”

Faust’s comments recall those of former University President Derek C. Bok, who likewise defended the University’s race-sensitive admissions practices nearly four decades ago on NBC’s “Meet the Press.”

During Bok’s tenure as president, critics argued that Harvard’s consideration of race in its admissions policies was unfairly discriminatory.

In fact, current litigation may find a precedent in the 1990 investigation by the U.S. Education Department’s Office of Civil Rights into allegations charging the College of using illegal quotas to deny Asian-Americans admission.

The two-year long inquiry sparked debate both on campus and off, even following its conclusion in the fall of 1990.

Though the Office of Civil Rights ultimately cleared Harvard of the alleged use of quotas or any other violations of the 1964 Civil Rights Act, administrators and critics continued to spar over the implications of the report’s findings—a debate that has taken on newfound relevance given the current controversy regarding Harvard’s admissions practices.

The Investigation Revisited

The national press first turned its attention to the issue of Asian-American admissions policies in 1985, when several newspaper articles questioned their implementation at public universities in California and selective New England institutions.

Critics like University of California at Berkeley professor L.C. Wang and MIT alum Arthur Hu cited comparatively higher SAT scores amongst accepted Asian-American applicants and lower acceptance rates—an average of 13.3 percent admission for Asians compared to 17.0 percent for whites between the years of 1978 and 1988—to contend that Asian-Americans needed to be more academically qualified than their white counterparts to be admitted.

By Morgan J. Spaulding

Addressing this disparity, Dean of Admissions William R. Fitzsimmons ’67 and then-admissions officer and Assistant Director of Minority Recruitment Susie S. Lebryk-Chao ’86 released a statement in January 1988 explaining the disparity as a result of the small number of Asian-Americans who are either children of alumni or recruited athletes—both groups of which the College gives a preference, or “tip.”

“I think a good case could be made that the acceptance rate for Asian students was going to be lower for [those] two factors,” Parke P. Muth, a former associate dean of admissions and director of international admissions at the University of Virginia, said, reflecting on the College’s admissions trends in the 1980s. “That’s certainly going to affect the numbers a little bit.”

The Department of Education, nonetheless, opened an investigation into Harvard’s admission practices in June 1988. Over the following two years, federal investigators met several times with University officials to learn about the admissions process, interview admissions officers, and review specific data about Asian-American admissions, Lebryk-Chao wrote in an email to The Crimson.

Ultimately, the Education Department accepted the University’s explanation and dismissed allegations of the use of quotas in a report released in October 1990, reaffirming the 1978 decision Regents of University of California v. Bakke, in which Harvard’s admissions methods were cited by the Court as a model of constitutionally race-conscious admissions.

Lebryk-Chao said the admissions office did not change admissions practices following the department’s review.

“The admissions process then and now considers applicants individually, in the context of their schools, communities, activities, and personal strengths,” she wrote.

A Legal Right, A Moral Wrong?

Despite the conclusiveness of the investigation’s findings, reactions among administrators, students, legal scholars, and interest groups were decidedly more mixed.

According to David Steiner ’54, the University’s vice president and general counsel at the time, the report to read like an endorsement of the College’s overall admissions program as opposed to only an investigation on the treatment of Asian-American applicants.

“There is a lot of language in that report that seems to refer to… approval of [Harvard’s] admissions policies in a general way,” Steiner said in 1990.

Some students at the time of the investigation agreed with administrators. Hoang Quan Vu ’92, former president of the Vietnamese Student Association, for example, said he was satisfied with the Education Department’s findings and glad Harvard would not lose federal aid.

Other Harvard affiliates, however, took issue with the findings, contending that the department had hidden behind the letter of the law in a case of clear wrongful discrimination.

“There’s a difference between what is legally right and what is morally correct,” Professor of Law Alan M. Dershowitz said at the time. “There is no question that Harvard is wrong.”

In contrast to Vu, other leaders of student minority organizations at the time seemed to share in Dershowitz’s sentiments.

Charles C. Kwak ’92, president of the Korean Student Association, echoed Dershowitz’s reasoning, arguing that the tips system attempted to “institutionalize discrimination through some loopholes of Title VI” of the Civil Rights Act of 1964.

“I expected that changes would be made in admissions that is more equitable… but it doesn't sound like they’ve made any progress,” Kwak said following the review’s end.

From Bakke to Fisher

With the College’s admission policies under scrutiny once more, admissions experts say historical antecedents have again become relevant.

“Affirmative action and race in admissions has been looked at a number of times, and in part defended, and in part challenged,” Muth said.

Despite the 1990 investigation’s affirmation that Harvard did not use quotas, he noted that the investigation failed to clarify many more key questions.

“Basically, the issue was: was it tougher for Asians than for white kids,” Muth said. “And that was pretty much the be-all and end-all of the decision.

The ambiguity that resulted from the investigation led to more disputes about the role of race in admissions in the 25 years that followed, with new attitudes and new litigation emerging, according to Muth.

Quan Vu, who had supported the department’s findings at the time, has since changed his views in the 25 years following the decision.

“I can tell you that there is a strong feeling among Asian-Americans that there exists a bias—whether or not it’s intended,” he said. “ I can tell you that Asian-Americans feel very much that their ethnicity is a strike against them because… whether or not there is a real quota, there is a perceived quota.”

Muth concurred with Quan Vu’s assessment, referring to a “confirmation bias” in admissions that is “not even conscious discrimination.” However, he cautioned, “That doesn’t mean there’s not discrimination.”

Given such perceptions, new litigation has been brought against Harvard to challenge perceived inequity of the College’s admissions practices. In 2014, the anti-affirmative action group Students for Fair Admissions filed a lawsuit on behalf of Asian-American applicants, mirroring concerns that prompted the Education Department investigation more than 25 years ago.

Shortly after, a similar complaint—since dismissed—was brought forth by 64 Asian-American groups, accusing the College of many of the same discriminatory practices that the Students for Fair Admissions alleged.

Edward Blum—the litigant behind both of these lawsuits as well as the Fisher v. Texas case—wrote in an emailed statement to The Crimson that “studies suggest that racial preferences in admissions at America’s most competitive universities [have] grown during the last two decades,” calling this “an unfortunate evolution.”

“As we have asserted in our lawsuit,” he continued, “Harvard uses a quota to limit the number of Asians it admits. Quotas are legally impermissible as well as morally wrong.”

The case has been delayed, pending the Supreme Court’s review of Fisher v. Texas.