Admissions Lawsuit, Round Two

Appellate arguments are heard in a closely watched admissions case. 

hotograph of demonstrators in front of the federal courthouse in Boston where the SFFA v. Harvard trial took place, with signs reading "Harvard No More Racial Stereotyping" and "My Race Should Not Hurt Me In Admissions.
In October 2018, supporters of Students for Fair Admissions hold signs in front of the federal courthouse where the admissions trial took place.Photograph by Alamy Images

Today, the First Circuit Court of Appeals in Boston heard oral arguments in the lawsuit arguing that Harvard’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 and could reverse decades of precedent on affirmative action in college admissions. 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 use of race in admissions as constitutional. (Updated: September 17, 2020, 8:57 a.m.) 

Unlike the district court where Judge Burroughs issued her ruling, appellate courts do not hold trials. Instead, the appeals court will review records from the earlier trial and Judge Burroughs’s decisions for any errors. At today’s oral arguments, which ran about 80 minutes, lawyers for Harvard and SFFA, as well as amici on either side, reiterated their positions before appellate judges Jeffrey Howard, Juan Torruella, and Sandra Lynch. 

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 the 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. “In fact, 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. Harvard was unable to carry that heavy burden in this case.” The full recording of the oral arguments can be accessed here

“If this were any other kind of civil rights case,” Consovoy added, “if this were a Title VII case against an employer, and the argument was that women were denied promotion, not because of a lack of objective qualifications, but because they didn’t fare as well on the subjective personal score, this case would have been resolved with summary judgment, let alone a trial.” 

Harvard’s lawyer, Seth Waxman, argued that SFFA had presented no evidence of implicit bias. “We’ve heard an incessant amount in their briefs about the fact that what really went on here was implicit bias,” he said. “Let’s be very clear about this….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 in the very last week of trial, after it turned out that although they proclaimed in their opening statement that they were going to call Harvard witnesses who would acknowledge that they were…essentially putting a thumb on the scale against Asian-American applicants, and none of that transpired. We started hearing in the days leading up to the closing argument that this is just implicit bias at work. There is no evidence in the case to support that.” 

Eric Dreiband, assistant attorney general for the civil rights division of the U.S. Department of Justice, also spoke during the arguments in support of SFFA, alleging that Harvard’s use of race is tantamount to an illegal quota system. “Harvard bears the burden, has to show that its use of race is narrowly tailored,” he said. “And what we see, what the record reflects in this case, is the current use of race is quite, in fact, expansive. Harvard monitors the evolving composition of the class at every stage of the process….Harvard monitors the class as it evolves throughout the system by comparing the evolving racial composition of the class to the prior year’s racial composition. And so what we see is a class that year over year is racially balanced within a very narrow range.” Harvard’s “expansive and pervasive use of race,” he added, unduly burdens Asian American applicants throughout the process. 

In response, Judge Lynch said that Dreiband seemed to be making a different argument than SFFA. “What entitles the United States to present a different case to us than that presented by the plaintiffs?” she asked. 

David Hinojosa of the 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. Both of them cited examples of Harvard students who had stressed their Asian American identity and experiences of discrimination in their applications, and were received favorably by the admissions office. “Ninety-four percent of student applicants [to Harvard] are rejected, including black and Latinx students with high academic ratings,” Hinojosa said on behalf of a group of student amici. “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.” 

“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. “These are students who would unquestionably succeed at Harvard, and would contribute to the educational benefits of diversity at Harvard. 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.”

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.” Last month, it also accused Yale, which has a similar race-conscious admissions process, of discriminating against Asian American applicants. Both schools maintain that they use race narrowly, as one factor among many, consistent with precedent set by the Supreme Court.  

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. The plaintiff in the case “did not present a single admissions file that reflected any discriminatory animus, or even an application of an Asian American who it contended should have or would have been admitted absent an unfairly deflated personal rating.” 

Burroughs acknowledged that Harvard’s process “may reflect some implicit biases” against Asian Americans, and suggested that it be addressed through efforts like implicit-bias trainings. “[T]he Court feels confident stating that the statistical disparities in personal ratings and admissions probabilities that have been identified are the result of some external race-correlated factors and perhaps some slight implicit biases among some admissions officers that, while regrettable, cannot be completely eliminated in a process that must rely on judgments about individuals,” she wrote. 

Read more articles by Marina N. Bolotnikova

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