Legal opinions do not often invoke Toni Morrison. But, last week, a federal judge relied on Morrison’s words in a rousing conclusion to the case on Harvard University’s use of race in admissions. “Race is the least reliable information you can have about someone. It’s real information, but it tells you next to nothing,” Morrison told Time, in 1998. The judge, Allison Burroughs, said that when this wisdom is accepted it will “ultimately make race conscious admissions obsolete.” But that hasn’t happened yet. The clearest message to emerge from the evidence in the Harvard case is that élite universities are very far from being able to achieve racially diverse student bodies using only race-neutral methods.

The case began in 2014, when Students for Fair Admissions, a group founded by Edward Blum, a conservative activist who opposes affirmative action, filed a lawsuit alleging that Harvard’s undergraduate-admissions process violated civil-rights laws that prohibit race discrimination. The most sweeping of Blum’s claims was that using race as a factor at all in admissions is unlawful, a count that was easily dismissed before trial, based on Supreme Court rulings permitting affirmative action. (That issue can be revisited on appeal.) The remaining counts at trial, which took place in 2018, in federal district court in Boston, alleged that Harvard actually deviated from the Supreme Court’s requirements, by engaging in “racial balancing”—that is, seeking a specified racial composition of a class rather than using race merely as a “plus” factor in evaluating an individual—and by using race as a factor in admissions even though there were available race-neutral alternatives. Harvard responded that its “whole person” review of each applicant considers race as only one factor among many, in order to achieve diversity, and denied the claim of racial balancing. Most controversially, the plaintiff alleged that Harvard’s admissions practices intentionally discriminated against Asian-Americans, a charge that Harvard rejected.

Last week, nearly a year after the trial, Judge Burroughs issued a judgment in favor of Harvard. The school’s admissions program survived “strict scrutiny,” meaning that Burroughs found that its use of race was necessary to serve the school’s compelling interest in diversity, particularly its interest in enrolling a critical mass of underrepresented minorities, such as African-American and Latino students. The court found that Harvard did not employ an impermissible quota or racial balancing, and that no available race-neutral alternatives would suffice to serve Harvard’s diversity goals. The “whole person” method of considering race as one factor among many in evaluating applicants along many dimensions has, for a half-century, tracked with the Supreme Court’s instructions on how to use race permissibly in admissions. This was the easy portion of the case, on which there was not significant suspense.

The difficult part, and the bulk of the trial, involved the allegation that Harvard intentionally depressed the rate of admission of Asian applicants relative to those of similarly qualified white applicants. The focal point was evidence that admissions officers gave Asian applicants higher extracurricular and academic ratings than they did white applicants. Therefore, Burroughs wrote in her decision, “Asian Americans would likely be admitted at a higher rate than white applicants if admissions decisions were made based solely on the academic and extracurricular ratings.” But admissions officers also gave Asian applicants lower “personal” ratings than they did white applicants—ranging from “outstanding” to “bland or somewhat negative or immature”—which brought down Asian applicants’ “whole person” scores and the group’s over-all admissions rate. The question, as Burroughs put it, was, “Why do Asian American applicants score lower on the personal rating?” The court considered two possibilities: that Asians “did not possess the personal qualities that Harvard is looking for at the same rate as white applicants” or that “there is overt discrimination or implicit bias at work.”

The Court found the reason for the disparity in the personal ratings unclear, speculating that undistinguished recommendations from high schools may have led admissions officers to give lower ratings. But the judge didn’t seem terribly troubled, because she didn’t think “the disproportionate strength of a racial group in one area necessarily implies that the same racial group should be strong in all areas.” (This was, to say the least, questionable reasoning; it is hard to imagine being unperturbed if admissions officers had systematically given weaker “personal ratings” to African-American applicants.) The court concluded, based on Harvard officials’ trial testimony, that there was no evidence of “discriminatory animus or conscious prejudice” on the school’s part, and that “any race-related discrimination against Asian American applicants relative to white applicants is unintentional.” Unintentional discrimination is not illegal discrimination in this context.

Burroughs emphasized the Harvard officials’ testimony, but she also noted that statistical analyses from two duelling expert economists on the role of race in admissions was “perhaps the most important evidence” in the case. The plaintiff’s expert understandably chose to exclude the personal rating in his statistical model, based on the idea that it was influenced by race; as a result, he found discrimination against Asians relative to whites. Harvard’s expert, also understandably, chose to include the personal rating in his model, because it contained information that was actually important to admissions, such as a compelling life story or admirable character; as a result, he found no discrimination against Asians. In this way, from the get-go, each side’s purportedly objective numbers already had its favored (and self-serving) assumptions baked in. In the end, the court said, “although the statistics perhaps tell ‘what,’ they do not tell ‘why,’ and here the ‘why’ is critically important.” In other words, yes, there was data, but it was the interpretation of it that mattered.

This tension between counting things and interpreting them, and between quantitative and qualitative knowledge, uncannily echoed the central issue in the discrimination claim against Harvard: the admissions process involved numbers, including scores for extracurriculars and academics, in which Asian applicants did well. But they were dragged down by the personal rating, which, “by its very nature,” included things that “cannot be fully captured by the statistical data,” such as “integrity, helpfulness, courage, kindness.” Harvard said such information was crucial to its admissions goals. The background stereotype that associates Asians with math and number-crunching inevitably presented an implied contrast to Harvard’s valorization of the unquantifiable. The numbers might be said to indicate discrimination against Asians, but that effect diminished to almost nothing when Harvard included a number that it said reflected less quantitative virtues. Unfortunately, it smacked of Harvard saying (to Asians), You just don’t understand what’s important, because you’re too focussed on numbers.

The quandary between hard and soft also reflects a larger paradox within affirmative-action law. If a school’s admissions were wholly data-driven, using numerical benchmarks, say, with the goal of tracking the racial population of the United States, that approach would run afoul of the Supreme Court’s prohibition of racial quotas. Aiming to select a class that is any particular percentage black or white is illegal. But the holistic approach, which the Supreme Court has deemed a permissible way to consider race, allows for consideration of qualities that aren’t always captured in numerical information. Considering someone’s experience of past discrimination or of overcoming hardship, for example, is permissible. It is also true, however, that if statistics revealed that using soft factors resulted in severe, rather than slight, racial disparities in admissions, a court would be more likely to find unlawful discrimination. Therefore, schools must pay some attention to numerical outcomes, but not too much, if they are to avoid, simultaneously, the appearance of a quota system and a statistical anomaly that seems to reveal discrimination. It’s reasonable to think the law has effectively induced schools to obscure racial preferences in nebulous and euphemistic categories like “personal” ratings.