The group suing Harvard University over alleged discrimination against Asian American applicants has released documents that it says show unfairness. One set of documents makes the case that the apparent advantage of white over Asian American applicants is due to the university's policies favoring applicants who are athletes, or who are black or Latino, or who are "legacies" (children or relatives of alumni).

Harvard has denied discrimination, and has contested the value of some of these documents, saying they are from early and incomplete research at the university. But the university has freely admitted that athletes and legacies receive an edge in admissions, and that it also considers race in admissions.

As these documents have been debated, some have asked why it is legal for Harvard (and other elite universities) to give an edge to alumni children or athletes. Many have wondered why this issue hasn't been reviewed by courts or the federal government, since this preference overwhelmingly benefits white people, generally white people with money.

In fact, this issue was once considered by the U.S. Department of Education's Office for Civil Rights, which in 1990 issued a report clearing Harvard of illegal bias. Specifically, the report found that there was nothing improper in Harvard favoring alumni children or athletes -- even if policies to do so favored white applicants over Asian American applicants.

And this was the case, the department found, even though some of the comments made by admissions officers indicated that some alumni children and athletes were not almost as good as other applicants, but were well below what it would otherwise take to be admitted. The department also found some comments from admissions officers that suggested an embrace of stereotypes of Asian Americans, but concluded there was no systemic discrimination against Asian Americans.

Harvard admissions today is of course different from admissions in the 1980s, the period covered by the federal review of the university. The admissions staff is different. Some policies are different. The number of applicants (from all racial and ethnic groups) has skyrocketed. The share of Asian American students in the student body has also gone up significantly.

But the report, obtained by Inside Higher Ed through a Freedom of Information Act request, illustrates that the tensions about Asian American admissions today are hardly new. Those admitted under the policies reviewed by the Department of Education (primarily white people) could well be the parents of those applying today (some of them with the benefit of being a legacy). And the core policy of favoring alumni children and athletes remains the same. One thing that is likely different is that admissions officers in the years since the OCR review have become much more aware that their comments could some day land in court or before a federal agency than they may have been when they wrote these frank analyses of some applicants who likely were admitted on bases having little to do with their brains.

Another key difference from today's skirmish over data: Harvard did not contest the numbers in the OCR report, which said that the university was doing nothing wrong.

The Numbers

OCR examined 10 years of data on admitted classes to Harvard, ending with those admitted to the Class of 1992, when the admit rate for Asian Americans was 12.9 percent and that of white applicants was 15.9 percent. OCR said that there was a statistically significant gap in the admit rates. OCR suggested it might also be useful to consider the Asian American admit rate as a percentage of the white admit rate. That analysis showed that for the class of 1990, the low point for the years examined by OCR, that rate was 64 percent. Two years later it was up to 81 percent, the highest rate during the decade examined. (The inquiry took place during the administration of George H.W. Bush.)

The data do not support the theory -- advanced by some Asian American advocates then and now -- that there are quotas in place for Asian American applicants, OCR found. During the decade examined, the percentage of Asian Americans in entering classes increased from 5.5 percent to 14.2 percent, OCR noted. It is now 19 percent.

When OCR examined the academic qualifications of Asian American and white applicants -- including information based on grades, SAT scores, recommendation letters, interview reports and more -- it found that the Asian American applicants were "slightly stronger." But white applicants surpassed Asian American applicants on non-academic factors.

Specifically, OCR found that Harvard's preferences for alumni children and athletes explained the difference in the admit rates between white and Asian American applicants. And the investigation concluded that Harvard had the right to favor those groups, even if doing so resulted in significant advantage to white applicants with those criteria.

That was despite OCR finding that the impact of those policies was significant. When it compared the white and Asian admit rates for the Class of 1992 (noted above) for those who were not recruited athletes or relatives of alumni, the admit rate for Asian Americans was higher than for white people (12.5 percent vs. 11 percent).

Tips With a Real Edge

When Harvard and other colleges with competitive admissions describe the impact on admissions odds of being an athlete or alumni child, the word they use is "tip," and they tend to describe the tip as modest, as favoring one relatively equal candidate over another.

But OCR found that these tips had a big impact. In fact, when OCR reviewed the notes of admissions officers about various candidates, the agency found a pattern in which comments indicated that athletes or alumni children were in contention for admission only because of their athletic skill or family connections. Many of the comments on prospective athletes suggest that the coaches would be the ones to make the call. Consider these quotes cited by OCR:

"A shaky record and so-so scores don't bode well for [the applicant's] case, ... nice personal qualities, and he'd make a fine addition to the team if the coaches go all out for him, but that's what it would take."

"... a straightforward case hanging on athletic ability. Easy to do if a need '1' (top athletic ranking], pretty ordinary if not."

"As a swimmer who could 'help the program,' she is special. If she isn't really special, the case will be difficult to make."

"I fear this may be tough without a field hockey push."

Then consider these comments on applicants with alumni family ties:

Dad's ... connections signify lineage of more than usual weight. That counted into the equation makes this a case which (assuming positive [recommendations]) is well worth doing."

"Well not much to say here. [Applicant] is a good student, w/average ECs [extracurriculars], standard athletics, middle-of-the-road scores, good support and 2 legacy legs to stand on.... Let's see what alum thinks and how far the H/R [Harvard/Radcliffe] tip will go."

"Not a great profile but just strong enough #s and grades to get the tip from lineage."

"Without lineage, there would be little case. With it, we'll keep looking."

OCR also uncovered a set of comments that may relate to why Asian American status (which should have helped candidates under Harvard's diversity policies) played a far lesser role in admissions outcomes than did the legacy and athlete factors that favored white applicants. OCR found "recurring" instances in which reader comments, and those of teachers and alumni interviewers, seemed to reinforce stereotypes (in particular being quiet and focused on math and science) in ways that could make Asian American candidates seem less worthy of admission. Consider these comments OCR reported:

"He's quiet, and, of course, wants to be a doctor ...."

From an interviewer: "... he comes across as the hard worker rather than the really outstanding potential scholar."

"[Applicant] has naturally reserved qualities."

About an Asian American applicant who noted that he grew up with a family business, with his parents owning a grocery store: "Don't romanticize, by the way -- the grocery may be profitable -- they are back in the middle-class suburb, remember."

Why Is It Legal?

Much of the OCR analysis focused on the alumni preference. While colleges debate the relative merits of favoring athletes in admissions, athletic skill is a skill and it is one possessed by the applicant. With an alumni preference, what the applicant did was to be born to the "right" family.

Harvard cited the role of its alumni -- in volunteering for the university and in making contributions -- to justify the preference for alumni.

OCR noted that Harvard had started granting alumni preferences in the early 1900s, before many Asian Americans (or non-white people generally) were applying, so said there was no evidence that the alumni preference was designed to minimize Asian American enrollment.

In a statement Harvard gave OCR, the university voiced concern about the impact of rejecting alumni children. "Harvard alumni support the college by devoting immense amounts of time in recruiting and other volunteer activities, by contributing financially, and by informing other people, be they potential students, parents, donors or community leaders, about the college. Those alumni are naturally, very interested in the college choices of their own children," the statement said. "If their children are rejected by Harvard, their affection for and interest in the college may decline; if their children are admitted, their involvement with the college is renewed. Having children share the parent's college affiliation stimulates those three aspects of contribution: of service, of money, and of community relations."

Is that argument a legal justification?

OCR acknowledged that there has been very little litigation on the topic. In 1976, a federal court rejected a lawsuit by a woman who challenged several policies of the University of North Carolina at Chapel Hill, including giving a preference to the children of alumni from out of state. (Generally, the Chapel Hill policy favored North Carolina residents). Chapel Hill defended the preference for alumni from out of state by noting that they made significant financial contributions to the university. And the court found this to be legitimate.

The court ruled that "since no suspect criteria or fundamental interests are involved, the state need only show a rational basis for the distinction. In unrebutted affidavits, defendants showed that the alumni provide monetary support for the university and that out-of-state alumni contribute close to one-half of the total given. To grant children of this latter group a preference then is a reasonable basis and is not constitutionally defective. Plaintiff's attack on this policy is, therefore, rejected."

The issue of alumni preferences has come up briefly, but never been truly addressed, in Supreme Court rulings on affirmative action.

The OCR analysis of the Harvard situation noted that the late Justice Harry Blackmun, in his opinion in the landmark 1978 decision, Regents of the University of California v. Bakke, noted the issue of preferences for alumni children and athletes, but said that this was not a matter for the courts.

"It is somewhat ironic to have us so deeply disturbed over a program where race is an element of consciousness, and yet to be aware of the fact, as we are, that institutions of higher learning, albeit more on the undergraduate than the graduate level, have given conceded preferences up to a point to those possessed of athletic skills, to the children of alumni, to the affluent who may bestow their largess on the institutions, and to those having connections with celebrities, the famous, and the powerful," wrote Blackmun, of the case that barred colleges from using quotas based on race or ethnicity, but permitted them to use "tips" based on race, provided that all applicants are evaluated holistically.

Blackmun added: "Programs of admission to institutions of higher learning are basically a responsibility for academicians and for administrators and the specialists they employ. The judiciary, in contrast, is ill-equipped and poorly trained for this. The administration and management of educational institutions are beyond the competence of judges and are within the special competence of educators, provided always that the educators perform within legal and constitutional bounds. For me, therefore, interference by the judiciary must be the rare exception, and not the rule."

The issue also came up in a 2013 Supreme Court oral argument that took place years after the OCR report on Harvard.

In a case about Michigan's voter-instituted ban on public colleges considering race in admissions (a ban that was upheld), the state's solicitor general said that if the University of Michigan wanted to promote diversity in higher education, it should eliminate its preference for alumni children. Alumni preferences, the solicitor general said, are "one way that tilts the playing field away from underrepresented minorities."

That comment drew a response from Justice Sonia Sotomayor, who made an argument sometimes invoked by advocates for minority applicants to defend alumni preferences, namely that it is only now that some minority applicants will benefit from them. "It's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away for that preference for them. It seems that the game posts keeps changing every few years for minorities."

In the end, OCR concluded in 1990 that it could not find any reason to deny Harvard the right to consider legacy or athlete status.

"OCR's review of current case law found no legal authority to suggest that giving preference to legacies and recruited athletes was legally impermissible," the Department of Education concluded. "In fact, the case law suggests that if schools are to possess a desirable diversity, officials must retain wide discretion, with respect to the manner of selecting students. The courts have generally been reluctant, if not unwilling to dictate what considerations or methods of selection are to be given priority in college admissions. OCR finds that the reasons or goals provided by Harvard for giving preferences to children of alumni and recruited athletes are legitimate institutional goals, and not a pretext for discrimination against Asian Americans."