Judge hears final arguments in Harvard affirmative action case
During final arguments Wednesday in the case against Harvard’s affirmative action practices, lawyers offered starkly different versions of how Asian-American applicants are treated and clashed over racial diversity on campus.
At the close of the afternoon hearing, US District Court Judge Allison Burroughs, who also presided over the three-week trial last fall, did not say when she would rule in upcoming months, stating briskly only that she would “get to work on this.”
The case, which Burroughs and lawyers for both sides predict is ultimately destined for the US Supreme Court, was brought four years ago by a group called Students for Fair Admissions. It asserts that Harvard discriminates against Asian-Americans, largely by giving them low “personal” ratings that lessen their chance of admission, while at the same time according higher such ratings to African-American and Hispanic students — the traditional beneficiaries of affirmative action.
“Harvard intentionally discriminated in this case against Asian American applicants,” Adam Mortara, representing the challengers, said Wednesday, “… because of implicit bias, (which) could have happened because of racial stereotyping.”
Mortara suggested that Harvard admissions officials had “fallen prey” to stereotypes of Asians as “one-dimensional,” “timid,” and “book-smart.”
“Harvard has yet to come up with any race neutral explanation for the Asian-American penalty in the ‘personal rating,'” Mortara said, referring to the category that captures traits from leadership to likability.
The “personal” assessment constitutes a crucial factor, along with academic scores and extracurricular talents, that determines who obtains a place at the elite campus.
Lawyer Seth Waxman, representing Harvard, said the challengers had failed to offer any examples of racial stereotyping, either with specific student applications or testimony from admissions office witnesses.
“There is just no evidence of stereotyping,” Waxman said. “Race has no effect on the admission of Asian-American applicants.”
He and co-counsel William Lee emphasized during Wednesday’s hearing that Asian-American applicants generally fare well in the screening intended to yield a diverse student body. Their numbers have dramatically increased since the 1980s and have been steadily rising in recent years.
For the most recently admitted class of 2022, Harvard reported that Asian-Americans made up 23% of the class. African-Americans were at about 15% and Latino students at 12%. A category comprised mostly of white students was 50%.
About 40,000 students apply annually to Harvard, the nation’s oldest university, for a freshman class of about 1,600.
‘You haven’t shown me any students’
Students for Fair Admissions, which initiated the case in 2014, was created by conservative activist Edward Blum, who for years enlisted white plaintiffs to challenge racial remedies such as affirmative action.
The group has asserted multiple grounds under Title VI of the 1964 Civil Rights Act, which prohibits bias at schools that receive federal funds. Among them: that Harvard unlawfully holds Asian-Americans to a higher standard than students of other races; engages in racial balancing to keep roughly the same percentages of various racial groups; and uses race not as a “plus factor,” as the Supreme Court has allowed, but as a defining characteristic for admission.
Burroughs queried the parties mainly on the legal standards and the respective burdens of proof. Yet she also revealed a concern that Students for Fair Admissions had not produced a single example of an Asian-American who was rejected because of unlawful bias.
“You haven’t shown me any students,” she told Mortara, who countered that the case rested on sufficient evidence from the data and admissions office practices.
He later predicted that any Asian-American student who had testified would have been met with scathing public criticism. He said that had been the experience of Abigail Fisher, a white student who had sued the University of Texas at Austin after she was rejected for an admissions program that gave a boost to racial minorities.
Lee, for Harvard, argued that “the plain failure to produce a single individual or a single (admissions) file…. is truly remarkable.” He contended that claims of Asian-American bias were not supported by the testimony.
Harvard has long contended that the data that show Asian-Americans faring poorly on “personal” scores was selectively mined because it excluded groups of traditionally favored students, such as athletes; children of alumni, faculty and staff; and those on a special dean’s list.
Lee also stressed how the campus would be transformed if affirmative action were disallowed. Harvard says the number of African-American and Hispanic students would be reduced by roughly 1,000 in a total student body of 6,700.
That, Lee said, echoing a line from the Harvard written filing, would “undercut the considered judgment of educators … that diversity enhances the campus community and the learning that takes place in classrooms, around the tables in dining halls, and on playing fields.”
Supreme Court path
Once Burroughs rules, any appeal would be made to the 1st US Circuit Court of Appeals and then to the Supreme Court.
The touchstone is the 1978 Regents of the University of California v. Bakke, which allowed universities to consider the race of an applicant among many factors but forbade admissions quotas. That case was decided on a 5-4 vote and subsequent rulings upholding affirmative action have similarly come down to a single vote.
The Supreme Court last took up a challenge to racial admissions in 2016, in the case from the University of Texas at Austin, also engineered by Blum, on behalf of Fisher.
Justice Anthony Kennedy cast the decisive vote favoring the University of Texas affirmative action program. He retired in July and has been succeeded by Trump-appointee Justice Brett Kavanaugh, who amassed a more conservative record as an appeals court judge.