Scott Eisen/Getty Images Ivory Towers What Is Harvard Trying to Hide? For years, reporters have been trying to get elite universities to be more transparent about their admissions process. It might take a court to pry it all open — with unforeseen consequences.

Josh Gerstein is a senior White House reporter for POLITICO.

The long war over affirmative action turned hot again last week, as Harvard and lawyers for Asian-American applicants duked it out in a federal courtroom in Boston in a closely watched case that could end consideration of race in college admissions.

I’m a veteran of that war. Nearly three decades ago, as a student, I was at the vanguard of a movement that took no side in the then-intense debate over affirmative action but advocated for something more radical than it might first appear: breaking down the secrecy over how elite colleges choose whom to admit to their ranks.


Winning the chance to attend an Ivy League school is an increasingly daunting feat. If schools aren’t just going to auction spots to the highest bidder, these colleges (which receive millions in federal funding and a slew of tax benefits) have a moral responsibility to defend their admission policies. Students, parents, faculty and alumni are also entitled to know that the schools’ claims about how they dole out the coveted slots aren’t just hot air.

My role in that crusade also led to a federal courtroom, albeit in the kind-of-grimy, dual-purpose post office building that housed Boston’s federal court through the 1990s, not the far glitzier complex that now sits on the waterfront.

The first, brief court showdown over Harvard’s admissions policies came on October 5, 1990. The hearing, before U.S. District Court Judge Douglas Woodlock, a Reagan appointee, came on a Friday afternoon as the federal government was about to head into a shutdown over a budget standoff.

The day before, the Education Department had officially completed a two-year-long investigation into Harvard’s admissions practices—essentially the same issue now the focus of the federal trial: whether the elite school’s process discriminates against Asian-Americans.

As a reporter for the student newspaper, the Harvard Crimson, I had twice filed Freedom of Information Act requests seeking details on the Education Department probe as it became more and more drawn out. Both times they were turned down by agency officials, citing the need to protect the ongoing investigation, although the second time a lawyer working on the case promised to “tack [the request] up on the wall” and process it when the probe concluded.

Unbeknownst to us or the public, as the investigation unfolded, the feds cut a deal with Harvard to keep its records secret. The university was reluctant to hand over a data tape that would allow investigators to easily derive and correlate almost any variables involving Harvard applicants—say, the SAT scores of admitted recruited athletes or the class rank of rejected Latinos. Harvard officials cited both privacy concerns and a worry that Education Department investigators might misunderstand the information.

The secret deal gave the Education Department access to the tape and other sensitive internal Harvard information on two conditions: that the feds fight any FOIA request for the records and that they return them to Harvard at the conclusion of the investigation. (How federal employees have any right to pledge to “resist” a law duly passed by Congress is still something I find puzzling.)

When my fellow reporters and I learned about the arrangement in a letter closing the investigation, we were livid, as it seemed we’d been subjected to a bait-and-switch: told our request would be fulfilled when the probe ended, even as an arrangement was made to shuttle much of the most interesting data back to Harvard.

So, armed with a quickly drafted complaint, we rushed to court—without lawyers—to try to block the handoff. Although we had no real idea what we were doing, almost immediately, Woodlock granted a hearing on our request for a temporary restraining order.

A lawyer from the U.S. attorney’s office turned up and said she couldn’t provide a detailed accounting of what had been returned to Harvard, but the Education Department pledged to the judge that nothing else would be until our FOIA request was addressed, so no “formal” order was issued by the court. Her assurance turned out to be a rather hollow one: The data tape and about 1,300 “summary sheets” detailing readers’ reviews of applications had been returned to the university the day before.

The tape would have been a veritable treasure-trove of data, allowing us to test many of Harvard’s claims about the roles of race, alumni status, athletic ability, prep school attendance and more in the admissions process. It would also show how far and how often the university bends its standards in individual cases.

While this, our most elusive quarry, escaped, thousands of pages of investigators’ notes, computer printouts and data analyses remained in federal hands. So we kept at it. In the ensuing months, many of those records emerged through our Freedom of Information Act requests.

The records—now tattered and yellowing from several moves and basement floods and published online here for the first time—belie some of Harvard’s key claims about its admissions process.

The university had long claimed that preferences for recruited athletes and legacies served only as a tiebreaker between applicants with “substantially equal” qualifications. Officials had also claimed that applicants who are children of alumni tend, unsurprisingly, to have better test scores and other numerical ratings than others in the pool.

But the data collected by the Education Department contained some explosive information. It showed the athletes and so-called legacies who were actually accepted had lower SAT scores than the rest of the class and were also deemed less attractive candidates by the admissions officers conducting Harvard’s process.

Some of the comments those officers wrote on the application folders of admitted legacies strongly suggested something more than a tiebreaker was at work. “Lineage is main thing,” one reader wrote. “Double lineage, but lots of problems … no balance,” the notes on another successful application said. “Lots of lineage here … Hard to explain a NO,” yet another said. “Classical case that would be hard to explain to DAD.”

Evidence of overt discrimination against Asian-Americans was slim but not entirely absent. Many rejected Asian-Americans were described as “shy” or “quiet.” In some cases, those same adjectives were used to describe alumni children who got in.

“Nothing really stands out. … quietness … H not really the right place,” readers wrote on the folder of one non-Asian-American Harvard grad’s daughter. Despite average ratings on every metric, she was admitted, the Education Department files show.

The investigators’ notes also showed that Harvard was willing to admit recruited athletes with academic profiles well short of Harvard’s usual standards. One star swimmer got in with a combined SAT of 970 out of 1600, the maximum possible at the time. A standout wrestler scored admission with a 1090. The average admittee who was not a recruited athlete or legacy had a combined SAT above 1300 during the time period the feds studied.

Although the federal investigators found the athletes and legacies to be less qualified to a statistically significant degree, Harvard Dean of Admissions William Fitzsimmons said that finding was immaterial. “Things can be statistically significant and completely insignificant in the real sense,” he told the Crimson in 1990.

Internal Harvard directives were similarly blunt about special treatment for children of alumni. “WRF [Fitzsimmons] should see the folders of all Harvard and Radcliffe children and/or faculty and staff children,” one memo said, meaning that the director of admissions was to personally review all the legacy applications.

Harvard’s documents also showed that while applications from “Chicano,” “Puerto Rican,” “Native American” and “Black” applicants were directed to readers from those groups, the other entry on that list was framed differently: “Blue Collar Asian.”

Harvard officials said the sole Asian-American admissions officer at the time, Susie Chao, sought to read all the applications from Asian-Americans whose parents had a blue-collar background and many of those from wealthier families. Applicants from other ethnic minorities generally got a minority reader regardless of the family’s background, the records showed.

Some Harvard admissions personnel told investigators the school wasn’t doing enough to admit minority candidates. Admissions officer David Evans, who is African-American, said investigators would “be surprised at how insensitive the admissions staff could be to minority discrimination, e.g. in Teacher recommendation,” notes taken by Education Department staff said.

Other comments the investigators recorded from Harvard admissions officials were more cryptic, even stupefying, leaving uncertainty about what advantage Asian-Americans enjoy in the process. Take this entry: “Fitz noted that Bakke [a key Supreme Court decision on affirmative action] says ethnicity can be ‘a’ factor in the admissions process. There is a distinction between being ‘a’ factor and being a ‘positive’ factor. AA ethnicity is clearly not a ‘nonfactor.’ ‘It does make a difference in a lot of cases.’ Fitz said that ethnicity may be a positive factor in a particular case, and it is always ‘a’ factor in a case.’”

In the end, the Education Department’s central conclusion was that Asian-Americans weren’t being intentionally discriminated against but were being disadvantaged in Harvard’s admissions process by the preferences for athletes and for alumni offspring. The feds accepted Harvard’s claims that the so-called “tip” for alumni children helped with fundraising and encouraged alumni involvement with the school.

Stories about the trial that opened last week often portray it as opening up Harvard’s system for the first time, but the two-year-long federal probe and the paperwork it produced yielded a myriad of insights that went beyond the treatment of Asian-Americans, legacies or athletes.

Harvard documents made public after the investigation showed that applications were distributed to readers for various “dockets,” which are almost entirely geographical. However, a couple of the dockets were limited to certain private schools. One included 17 New England prep schools, like Choate, Deerfield Academy and Hotchkiss. The other docket served just two schools: Philips Academy in Andover and Philips Exeter.

Although Harvard denies any numerical targets based on race, ethnicity or alumni status, the released documents make clear there were indeed “targets” for the various dockets. For the Class of 1992, Harvard sought to admit 2,040 applicants, 135 from the 17-prep-school list and 61 from the Andover and Exeter docket.

The disclosures from the Education Department probe did prompt a flurry of outrage in some quarters, particularly over the alumni preferences. “Is Harvard really innocent?” asked a Crimson story that fall.

The next year, based on the same FOIA documents, Harvard graduate John Larew penned a Washington Monthly article that delivered a withering rebuke of the practice of giving children of alumni a leg up. “Why are droves of unprepared, unqualified kids getting into our top colleges?” Larew’s essay asked. (Harvard responded: “Far from being ‘unqualified,’ our alumni children are among the strongest students in the country.”)

But the political reaction was a mild one. Several months after the Harvard probe concluded, Senate Minority Leader Bob Dole (R-Kan.) complained that the legacy-admissions policy the inquiry exposed was not defensible. “These alumni perks have nothing to do with an individual’s qualifications or merit. … The last thing we need in American education is a caste system,” Dole said, firing off a letter to Education Secretary nominee Lamar Alexander to look into the issue and see whether the practice was in fact unlawful. Nothing much happened.

Covering the big dust-up between Harvard and the Education Department, it became evident that the thousands of pages of admissions officers notes were key evidence of what the school was and wasn’t doing with applications from Asian-Americans, legacies and everyone else. That left me with a question: Where were these documents, which Harvard called summary sheets?

When students went to see their official files at the registrar’s office, things such as teacher recommendations and test score reports, there was no sign of these notes. An obscure federal law called the Federal Educational Rights and Privacy Act, or FERPA, but better known as the Buckley Amendment, after sponsor Sen. James Buckley of New York, guarantees students various rights to examine records their schools keep about them.

So, in January 1991, I sent a written request to Harvard, asking for mine. When the school declined to provide it, I filed a formal complaint with the Education Department office that oversees the law. In May of that year, the department wrote to Harvard President Derek Bok to demand an official response.

Harvard’s answer was that the forms have “no significance” to students once they enroll. The school’s lawyers also noted that students often waive their rights to see teacher recommendations, which are often discussed on the forms.

In August, the federal bureaucracy delivered its verdict: Harvard was violating the law. In a letter to the school’s new president, Neil Rudenstine, the Education Department made short work of the university’s arguments.

“This Office finds that the University has denied Mr. Gerstein access to the summary sheet in violation of FERPA,” official Leroy Rooker wrote. “It is not necessary to consider the University’s position further. Clearly, the summary sheets fall within the FERPA definition of ‘education records.’ …This Office finds that the University violated FERPA.”

FERPA is not a criminal law, nor even a civil one you can enforce in court. There is no episode of “Hawaii Five-O“ where McGarrett says, “Book 'em, Danno: FERPA One.” However, a school that runs afoul of the law puts all its Education Department funding at risk.

So, with millions of dollars in funds at stake, Harvard threw in the towel. A precedent was also set for Harvard, and schools across the country, that admissions office reviews must be accessible to students, just as their transcripts and disciplinary records are.

Seeking to leverage the victory, I cobbled together several dozen friends and associates to swoop in with requests for their own summary sheets. I even took out an ad in Harvard Magazine to let students and recent graduates know they could seek their records.

Most didn’t share their forms with me, but some did.

One woman from Kansas who’d written an essay about quitting the Girl Scouts over its religious component said she was troubled by some of the comments.

“I must say that it did contain some surprises; had I known the conditions under which I was accepted, I would have thought twice about attending Harvard,” she wrote to me. “Thank you for your help in obtaining this information.”

Others said reading the forms was affirming because it turned out their admission was not as close a call as they had thought. The access allowed students to assess for themselves whether any kind of bias affected the process, but it was an imperfect window because of one of the limitations of FERPA: It applies only to those who get into a school and attend it, not to those who don’t.

My own sheet was interesting, but not hugely revealing: “Being defeated this year as class president was a shock. … I found his essay a bit self-congratulatory. … He’ll make himself known at the Crimson.”

The drive for access to admissions data at Harvard unleashed similar efforts at other campuses across the country. Inquiries poured in from Wesleyan, Amherst and elsewhere. At Stanford and the University of Pennsylvania, the student newspapers even printed blank forms for students to request their file.

Some university administrators threatened to destroy all their admissions evaluations. And as they responded to a flood of requests, they warned that some students were disturbed or even alarmed when they saw admissions officers’ notes on them.

“Some of the people asking for their rights are victims of their rights," Stanford admissions official Jonathan Reider told the Chronicle of Higher Education during a 1992 conference at which admissions officers were buzzing about the phenomenon, a suggestion that students would suffer emotional trauma from viewing their records.

What kinds of comments were troubling students? According to Reider, things like: “If Mr. X wasn't so well connected we wouldn't have admitted him."

***

In the ensuing years, politicians on the left and the right have seized on legacy admissions from time to time, but it’s never really caught fire. “It is a birthright out of 18th-century British aristocracy, not 21st-century American democracy,” Sen. John Edwards (D-N.C.) complained in 2002. He stood by his opposition as he warned about “two Americas” during his presidential campaigns that followed, but he left the Senate and never made it to the White House.

In 2003, Sen. Edward Kennedy (D-Mass.) proposed some sunlight on the admissions issue: requiring colleges to disclose such preferences and their policies on early-decision programs thought to disadvantage minorities and the poor. Universities resisted, and the measure never became law.

At a news conference in 2004, President George W. Bush—a famously mediocre student at Yale who was the son of George H.W. Bush, Yale Class of 1948, and grandson of Prescott Bush, Yale Class of 1917—weighed in on the issue, saying he opposed legacy preferences. “I think colleges ought to use merit in order for people to get in,” he said. But the bully-pulpit talk didn’t do much.

The media also delved into the issue on occasion, sometimes breaking new ground. In 2002, the Crimson drew attention to an obscure feature of Harvard’s admissions program: the Z-list. The student newspaper reported that in a typical year Harvard takes 80 or so waitlisted applicants and offers them admission if they’re willing to take a year off before enrolling.

The Crimson said an unscientific sampling suggested a disproportionate number of those on the Z-list were children of alumni, perhaps more than 70 percent. Hard numbers were unavailable because the university declined to tally them. “We try to devote our work to questions that are interesting,” Admissions Director Maryln McGrath Lewis said.

In 2006, a book by Wall Street Journal reporter Daniel Golden unearthed more about how Harvard uses the admissions process to court its alumni and big donors.

“I found numerous examples in which a child’s acceptance closely preceded or followed a major gift from the parents, giving at least the appearance of a quid pro quo,” Golden wrote in “The Price of Admission.” “Most notably, a politically connected New Jersey real estate mogul with no Harvard ties pledged $2.5 million to the university only months before his elder son—a student below Harvard’s usual standards—was admitted.”

The anecdote—a good one at the time—is even better today. The wealthy scion was Jared Kushner, now President Donald Trump’s son-in-law and a senior adviser to the president. Current and former officials at Kushner’s private high school didn’t view him as Harvard material and were surprised—even a little miffed—he got in.

“His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure there is no way this was going to happen,” a former official at the high school told Golden. “It was a little bit disappointing because there were at the time other kids we thought should really get in on the merits, and they did not.”

Golden’s book made a splash, and his articles on the subject won him a Pulitzer Prize. But ask him today about their impact on schools’ policies and the legal standards governing admissions and he’ll candidly say: Not much.

“It prompted a lot of discussion, and I think I raised awareness. … It didn’t prompt any reforms,” said Golden, now an editor at ProPublica. “You could conclude as a general rule that the system I was talking about turned out to be so ingrained that even a powerful, well-researched critique didn’t make a lot of difference.”

Many say legacy preferences perpetuate discrimination akin to the so-called Jewish quotas imposed to limit Jewish enrollees at elite schools in the early 20th century.

“The echoes of the broad history, including the Jewish quota back in the day, are never too far from your mind in viewing it,” said Larew.

Journalist Peter Schmidt insists it’s more than just an echo. He says the creation of official policies granting a leg up to legacies a century ago was a direct response to the surge of Jewish applicants and served as one of many tactics schools used to try to cap the number of Jews.

In that era, many elite schools began adopting subjective criteria such as “character” and stepped up use of alumni interviews. At the trial last week, Fitzsimmons testified that one reason Asian-American applicants get lower “personality” ratings is because their teacher and guidance counselor recommendations tend to be not as strong as those of white applicants.

Those challenging the current treatment of Asian-Americans see a direct line between the efforts to rein in the number of Jews on campus in the last century and indications that Asian-Americans are held to a higher standard today. In a June motion, lawyers pressing the case wrote, “Harvard’s discrimination against Jewish students is the original sin of holistic admissions.”



***

Students’ interest in seeing their admissions files and their knowledge of their right to do so seems affected by a unique kind of amnesia in which events that happened more than four years ago are quickly forgotten.

In 2015, an irreverent online newsletter at Stanford published instructions on how to demand the “work cards” containing the comments by admissions officers. Just how and why is unclear. In the course of a few weeks, the school got 2,800 requests, even setting up a “call center” to handle the demand.

The story quickly traveled from BuzzFeed to the New York Times, both of which portrayed the availability of the records as a revelation. It appears that even Stanford had forgotten about the earlier wave of demands—the school once said it planned to stop keeping the cards but apparently began doing so again when the system was computerized.

The wave of 2015 requests spread across the country, from Stanford to places like Yale and, again, Harvard.

It engendered two kinds of backlash, one predictable, one not. Schools again began looking at whether to keep admissions records. After a group of Yale Law School students demanded their records, that school decided to discard its admissions records altogether. The law requires schools to comply with pending requests from current and former students, but imposes no particular requirements on what records universities must keep.

One Yale Law third-year, Joseph Pomianowski, was so irate, he called for FERPA to be amended to force schools to keep records throughout a student’s time at the school and to give advance notice of plans to destroy records. He was even willing to grant schools a bit of privacy for some admissions ratings.

“With several simple changes, Congress could level the playing field between students and their institutions and tamp down on the wide-ranging and self-serving interpretations of FERPA that universities render on a case-by-case basis,” he wrote in the New Republic.

The less predictable response was a backlash of sorts among some students to the idea of knowing the truth—potentially, the ugly truth—about why they got in. “Don’t Look at Your Admissions File,” declared an editorial the Crimson published in the fall of 2016.

“Viewing admission files could … tell students that an essay they were especially proud of was not as good as they reckoned, or that their extracurricular activities were lacking,” the Crimson warned. “These revelations would only exacerbate any lingering anxieties, despite the underlying irony that any of these trivialities were irrelevant, since the applicant gained admission to the College.”

The paper did say, however, that it continued to support “in principle” students’ legal right to see the records. Many Harvard students are disregarding the Crimson’s hand-wringing, with about 200 a month asking to review their admissions record.

At Harvard, the admissions transparency battle has continued through the present day, now taking place within the federal lawsuit the anti-affirmative-action group Students for Fair Admissions has been pressing for several years. Court records show more than 170 legal filings or orders wrangling over what should be kept from public view in the case. Some of the fights are about how far to go to protect the privacy of Harvard applicants and of backers of the group pressing the suit.

However, Harvard has also argued that too much disclosure could allow applicants to “game the system” and put the elite school at a disadvantage to its competitors.

“The disclosure of information that reveals—to an unprecedented degree—the inner workings of Harvard’s admissions process may harm Harvard not only by motivating applicants to modify their behavior to take advantage of that information, but also by disadvantaging Harvard in the extremely competitive market to recruit, admit, and enroll the most outstanding students across the world,” Harvard’s lawyers wrote in a June filing.

Harvard also complained that SFFA was essentially trying to dump the university’s files into the public domain, accusing the group of trying “clutter the docket with irrelevant exhibits in an effort to make them public.”

The university said its privacy concerns went beyond those of applicants and students, to include “alumni, donors, and other organizations” referenced in the school’s records.

But Harvard’s lawyers said even numerical breakdowns, such as “statistical snapshots of Harvard’s tentatively admitted class during the admissions cycle,” should be shielded. Wealthier applicants using college counselors could “reverse-engineer” the data to switch intended majors in a bid to boost their applications, the school warned.

Harvard also said one reason to keep its records private was because they could be misinterpreted. “Disclosure of these documents would likely force Harvard to expend significant resources to dispel myths about its admissions process that emerge from erroneous third-party statistical analyses of these data,” Harvard attorneys argued.

Larew, who railed against Harvard’s legacy policy in the wake of the Education Department probe, insists that Harvard has frequently dissembled about and obscured its actions.

“They clung to an explanation that minimized the extent of their practices, minimized it to the point of dishonesty, until obliged to disclose information that showed otherwise,” he said. “Nothing in their history leads me to believe they’d be any more forthcoming about it now.”

However, it’s unfair to say Harvard has been entirely resistant to scrutiny of its process. Virtually every news story on the topic in the past three decades features an interview with Fitzsimmons or Lewis, the figures who’ve run the system since the mid-1980s.

And while it’s indisputable that Harvard fought my initial records request, Harvard’s admissions dean took a more moderate approach during the ensuing publicity. "It’s probably fair to remove some of the veil of secrecy surrounding admissions," Fitzsimmons said then, according to the Chronicle of Higher Education.

Just last month, U.S. District Court Judge Allison Burroughs punted until after the trial issues about public access to more than 100 exhibits the two sides disagreed about. She said some of the information might emerge at the trial. Indeed, some potentially damaging facts Harvard sought to keep under wraps have come out. Straight out of the gate Monday, the plaintiffs in the suit revealed that the school uses race-based PSAT-score criteria to send out letters encouraging high school students to apply and that Asian-American students need higher scores to get such a letter than white ones.

Despite Harvard marking many exhibits as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” some internal documents have also entered the public domain. A Harvard admissions office memo that appears to date to 2013 suggests that special treatment for alumni has eroded a bit, with the former practice of the admissions director reading all legacy applications now reined in to cases that “might require special handling” or where doing so “might be helpful.”

Harvard is right about one thing: Notwithstanding claims last week that the current trial isn’t about affirmative action, SFFA wants the school’s secrets told because it thinks that will bring down the curtain on the use of race in college admissions. The Trump administration has also weighed in on the case, apparently hopeful that it could be a vehicle to get the Supreme Court to bury affirmative action once and for all. (though the Justice Department’s filing takes no position on whether preferences for alumni are defensible).

But the fact that those demanding transparency have a particular ideological bent is no justification for perpetuating secrecy around the process.

Those defending Harvard’s system—whether its use of race, its approach to diversity or its preferences for athletes and so-called legacies—should do so on the facts, not by hiding the facts.

Often Harvard’s defenders seem to nurse a sense of grievance that the school receives such intense attention from groups like SFFA and from the media. Harvard is, after all, just one of many schools that take account of race in the admissions process, where Asian-American applicants seem to face higher standards and where alumni get a special boost for their kids.

But Harvard and its graduates benefit immeasurably from its perception as the pre-eminent institution of higher education in the U.S., if not the world. The number of applications keeps rising, and the competition for each spot is becoming more and more intense.

With great prestige should come great responsibility. That’s why opening up Harvard’s admissions practices to the light of day is more than just the means to a good story or a cudgel in the affirmative action wars. It’s only fair.

