On September 16, the First Circuit Court of Appeals in Boston heard oral arguments in the lawsuit arguing that Harvard College’s use of race in admissions discriminates against Asian Americans.The much-watched case, which was first filed in 2014 by Students for Fair Admissions (SFFA), may ultimately be considered by the U.S. Supreme Court. SFFA’s founder and president, affirmative-action opponent Edward Blum, quickly moved to appeal the October 2019 decision by federal judge Allison Burroughs that upheld Harvard’s practices as constitutional (see “Harvard’s Admissions Process Upheld,” November-December 2019, page 21).
Much of the case hinges on the interpretation of the “personal” ratings assigned by the admissions office to each applicant. SFFA argues that the ratings, which reflect subjective judgments about applicants’ personal traits such as courage, leadership, and integrity, are substantially lower for Asian American applicants than for whites, even though Asian Americans outperform whites on other measures such as academic and extracurricular performance.
“After nearly six years of litigation, and a lengthy trial, the district court was unable to competently determine that Harvard treats Asian-American applicants fairly,” said SFFA attorney William Consovoy. “The court found appropriate and credible evidence of a statistically significant penalty in the personal score and ultimately concluded that these discrepancies could not be fully and satisfactorily explained. Judgment should have been rendered against Harvard for this reason alone. After all, one of the chief purposes of strict scrutiny is to ensure that racial stereotyping and other forms of illicit bias do not infiltrate a system of racial preferences.”
“We’ve heard an incessant amount in their briefs about the fact that what really went on here was implicit bias,” said Harvard’s lawyer, Seth Waxman ’73. “SFFA didn’t present a single fact witness who testified at all about implicit bias. They didn’t put on an expert who would testify about what do we mean by implicit bias in this context, and why is it reasonable to conclude that it’s affecting the process….This is something that their lawyers started coming up with” after they were unable to prove the main allegations in their case, he added.
Eric Dreiband, M.T.S. ’89, assistant attorney general for the civil-rights division of the U.S. Department of Justice, also spoke at the arguments in support of SFFA, alleging that Harvard’s use of race is tantamount to an illegal quota system. (Earlier this year, the Justice Department filed an amicus brief in support of SFFA, arguing that “Harvard actively engages in racial balancing that Supreme Court precedent flatly forbids.” It also accused Yale, which has a similar race-conscious admissions process, of discriminating against Asian American applicants.)
“Harvard bears the burden to show that its use of race is narrowly tailored,” Dreiband said. “And what we see what the record reflects in this case is the current use of race is quite, in fact, expansive.….And so what we see is a class that year over year is racially balanced within a very narrow range.”
David Hinojosa of Lawyers’ Committee for Civil Rights Under Law and Jin Hee Lee of the NAACP Legal Defense and Education Fund both spoke in Harvard’s favor. “The overwhelming evidence in this case—including hundreds of student files reviewed, all applications in the record—shows that Harvard’s admissions process is consistent with the 40-years-plus precedent, grounded in an individualized review that is narrowly tailored to achieve Harvard’s compelling interest in student-body diversity,” Hinojosa said.
“SFFA would have black students... suffer the most from their preferred race-neutral alternative” admissions policies.
“It is widely acknowledged that our broken K-12 educational system deprives qualified and hardworking black students from accessing important educational opportunities that would otherwise bolster their college applications,” said Lee on behalf of 26 Harvard student and alumni organizations. “And yet SFFA would have black students more than students in any other racial group suffer the most from their preferred race-neutral alternative.” She added: “It is especially remarkable for SFFA and the Department of Justice to suggest that race is irrelevant while our country is currently grappling with the dual crises of police violence and the COVID-19 pandemic.”
Burroughs’s 2019 decision was issued about a year after the trial began in October 2018. “Harvard’s admissions program has been designed and implemented in a manner that allows every application to be reviewed in a holistic manner consistent with the guidance set forth by the Supreme Court,” she wrote then. A decision from the appeals court is expected in the next several months.
