Both Sides Decry 'Wolf' Of Racial Bias As Harvard Trial Wraps
Law360, Boston (November 2, 2018, 8:27 PM EDT) -- The closely watched trial of a lawsuit taking on Harvard University's affirmative action admissions policies, which could land before the U.S. Supreme Court and have a wide-ranging effect on college applications, closed Friday with the challengers saying the “wolf" of racial bias was at the school's front door and the university saying that wolf was targeting black and Latino students.
In closing arguments before U.S. District Judge Allison D. Burroughs, who will decide the case, and an overflow crowd in the courtroom on Boston’s waterfront, the anti-affirmative-action group Students for Fair Admissions and Harvard each circled back to a term used in opening statements by SFFA lawyer Adam Mortara of Bartlit Beck Herman Palenchar & Scott LLP.
"Someday this will be written about in the history books, and those books may say that Harvard let the wolf of discrimination through the front door,” Mortara said. “We hope those books will say this court slammed the door shut."
WilmerHale’s William F. Lee, counsel for Harvard, agreed the “wolf of bias” was at the door, but said it came cloaked as SFFA’s desire to remove 1,000 highly qualified African-American and Hispanic students from Harvard’s campus.
“That wolf is not intentional discrimination by anyone. That wolf comes in the form of SFFA and its experts,” Lee said. “It is those who would turn back the clock … The wolf of racial bias is, indeed at our door. We ask the court to turn the wolf out.”
SFFA sued the nation’s oldest university in 2014, claiming it unfairly caps the number of Asian-Americans admitted and, due to unfair bias and stereotyping, assigns Asian-Americans lower scores on the personal profile rating it hands out to every applicant. Harvard defended its admissions policies, saying it uses race only as a boost, or “tip,” in the narrowly defined way sanctioned by law, and only in connection with multiple other factors and for highly qualified candidates.
Over the past three weeks, SFFA has sought to convince Judge Burroughs that Harvard has systematically assigned lower personal scores to Asian-American students, falsely stereotyping them as “quiet” and “reserved.” SFFA lawyer John Hughes stressed this during his closing argument, pointing to a recent change clarifying to Harvard admissions officers that race is not to be used in assigning a personal score and students who are more introverted should not be docked on the personal rating.
Hughes called it “a corrective step to combat some of the bias and stereotypes that creeped into Harvard’s process,” while also presenting it as evidence Harvard knew it had a problem.
“To Harvard’s credit, they actually finally did something about it for the Class of 2023,” Hughes said. “It’s a step in the right direction.”
But Lee said the admissions guidelines shift constantly, saying the Harvard admissions office didn’t close after SFFA filed its lawsuit. Pointing to statistics that show Asian-Americans outscored other races in the academic and extracurricular profile ratings assigned by Harvard admissions officials, he said it would amount to a bizarre scheme to give those applicants higher scores on part of their application, only to turn around and unfairly dock them on the personal rating.
Judge Burroughs requested that both sides submit post-trial briefs by February, and more in-court arguments are expected early next year before she reaches a verdict. Many feel this will wind up before the Supreme Court, and outside the courthouse Friday, both sides acknowledged the case is likely far from over.
“It’s quite clear what this case is about … SFFA wants to eliminate 1,000 African-Americans and Hispanics from the Harvard campus,” Lee said. “If that’s going to happen, it’s going to be a decision of some significance by a court of some significance, but that would be a big change in the law, it would be a big change for universities like Harvard and, personally, I think it would be a disaster for the country.”
“It would be a very, very sad day in history,” added fellow WilmerHale lawyer Seth Waxman, “given how far we have come and yet the kind of divisions as a country we face politically and among different racial and ethnic and geographic groups. This is the way forward, not the way SFFA is proposing to take us.”
Asked whether he expects the matter is headed for the high court, the anti-affirmative-action legal strategist behind the suit, Edward Blum, said "common wisdom says that it is." Blum has already guided six cases to the Supreme Court, including the 2013 case Fisher v. Texas, which upheld the use of race in college admissions.
"We are respectful of Judge Burroughs. She is going to do an excellent job. We are not thinking about anything beyond that right now," said SFFA attorney William S. Consovoy of Consovoy McCarthy Park PLLC, later adding, "We are committed to this case until the end."
Consovoy will likely handle the appeal for SFFA if the case continues beyond the district court level, as expected, while Waxman and WilmerHale's Paul Wolfson would lead Harvard's side.
Competing expert data dominated much of the trial and each side accuses the other of cooking the numbers to fit the result they wanted to see. SFFA left out crucial groups of students, such as athletes and legacies, and excluded variables like intended career and parental occupation, Harvard said, because they made the alleged "Asian penalty" disappear.
Harvard argues that data showing a positive effect for being Asian for athletes, legacies, Dean's List students, and children of faculty, Asian-American students from California, and female students is more than enough to show that Harvard did not discriminate.
Harvard also criticized SFFA's expert for omitting the controversial personal rating from his data set, but SFFA said that rating cannot be factored in, because it is influenced by race.
"The statistical case is over, once you resolve that factual dispute in our favor," Hughes told Judge Burroughs.
A 2013 investigation by Harvard's own Office of Institutional Research also showed Asian-Americans were at a disadvantage and the school knew it had a problem at the time, but did nothing, SFFA claimed, pointing to contemporaneous internal emails by admissions officials.
The trial dug into the once-secret Harvard admissions process and drew considerable public interest. The fifth-floor courtroom was often packed with a standing-room-only crowd. The Trump administration weighed in, siding with SFFA and accusing Harvard of "racial balancing." The other Ivy League schools backed Harvard, which insisted a diverse campus benefits all students, as did a group of diverse students and more than two dozen student and alumni organizations on the Cambridge, Massachusetts, campus.
The students and organizations were allowed to participate by Judge Burroughs as amici, and gave their own closing statements Friday. Both of them noted that none of the anonymous SFFA plaintiffs testified or submitted their rejected applications during the trial.
"Behind the dueling statistical data in this case, are real people," Cara McClellan of the NAACP Legal Defense and Educational Fund told the judge. "Their testimony made clear that the dramatic reduction in Black and Latinx students on campus from the loss of race-conscious admissions, estimated at 50 percent, would be devastating for all Harvard students."
"I feel privileged to participate in a trial where the lawyering has been so exceptional," Judge Burroughs said as the trial concluded. "The issues raised in this case are incredibly important, both to the parties in this case, but also to the world ... I hope our final work product is worthy of the effort put into it."
Students for Fair Admissions is represented by Adam K. Mortara, J. Scott McBride, John M. Hughes, Katherine L.I. Hacker and Krista J. Perry of Bartlit Beck Herman Palenchar & Scott LLP, William S. Consovoy, Thomas R. McCarthy, Michael H. Park, John Michael Connolly and Patrick Strawbridge of Consovoy McCarthy Park PLLC, and Paul M. Sanford of Burns & Levinson LLP.
Harvard is represented by Seth P. Waxman, Paul R.Q. Wolfson, Daniel Winik, Debo P. Adegbile, William F. Lee, Felicia H. Ellsworth, Andrew S. Dulberg, Elizabeth C. Mooney and Danielle Conley of WilmerHale.
The amici students are represented by Oren M. Sellstrom, Genevieve Bonadies Torres, Kristen Clarke, Jon M. Greenbaum and Brenda Shum of the Lawyers' Committee for Civil Rights, Nicole K. Ochi of Asian Americans Advancing Justice and Lawrence Culleen, Nancy Perkins, Steven Mayer and Emma Dinan of Arnold & Porter.
The amici organizations are represented by Cara McClellan, Earl A. Kirkland III, Janai S. Nelson, Jennifer A. Holmes, Jin Hee Lee, Michaele N. Turnage Young, Rachel M. Kleinman, Samuel Spital and Sherrilyn A. Ifill of the NAACP Legal Defense and Educational Fund Inc. and Kathryn Rebecca Cook and Kenneth N. Thayer of Sugarman Rogers Barshak & Cohen PC.
The case is Students for Fair Admissions v. President and Fellows of Harvard College, case number 1:14-cv-14176, in the U.S. District Court for the District of Massachusetts.
--Editing by John Campbell.
In closing arguments before U.S. District Judge Allison D. Burroughs, who will decide the case, and an overflow crowd in the courtroom on Boston’s waterfront, the anti-affirmative-action group Students for Fair Admissions and Harvard each circled back to a term used in opening statements by SFFA lawyer Adam Mortara of Bartlit Beck Herman Palenchar & Scott LLP.
Adam Mortara of Bartlit Beck Herman Palenchar & Scott LLP, counsel for Students for Fair Admissions, speaks with reporters following the final day of the landmark trial challenging Harvard University's affirmative action admissions policies. William S. Consovoy of Consovoy McCarthy Park PLLC, center, is expected to lead any appeal in the closely watched case. (Chris Villani | Law360)
WilmerHale’s William F. Lee, counsel for Harvard, agreed the “wolf of bias” was at the door, but said it came cloaked as SFFA’s desire to remove 1,000 highly qualified African-American and Hispanic students from Harvard’s campus.
“That wolf is not intentional discrimination by anyone. That wolf comes in the form of SFFA and its experts,” Lee said. “It is those who would turn back the clock … The wolf of racial bias is, indeed at our door. We ask the court to turn the wolf out.”
SFFA sued the nation’s oldest university in 2014, claiming it unfairly caps the number of Asian-Americans admitted and, due to unfair bias and stereotyping, assigns Asian-Americans lower scores on the personal profile rating it hands out to every applicant. Harvard defended its admissions policies, saying it uses race only as a boost, or “tip,” in the narrowly defined way sanctioned by law, and only in connection with multiple other factors and for highly qualified candidates.
Over the past three weeks, SFFA has sought to convince Judge Burroughs that Harvard has systematically assigned lower personal scores to Asian-American students, falsely stereotyping them as “quiet” and “reserved.” SFFA lawyer John Hughes stressed this during his closing argument, pointing to a recent change clarifying to Harvard admissions officers that race is not to be used in assigning a personal score and students who are more introverted should not be docked on the personal rating.
Hughes called it “a corrective step to combat some of the bias and stereotypes that creeped into Harvard’s process,” while also presenting it as evidence Harvard knew it had a problem.
“To Harvard’s credit, they actually finally did something about it for the Class of 2023,” Hughes said. “It’s a step in the right direction.”
But Lee said the admissions guidelines shift constantly, saying the Harvard admissions office didn’t close after SFFA filed its lawsuit. Pointing to statistics that show Asian-Americans outscored other races in the academic and extracurricular profile ratings assigned by Harvard admissions officials, he said it would amount to a bizarre scheme to give those applicants higher scores on part of their application, only to turn around and unfairly dock them on the personal rating.
Judge Burroughs requested that both sides submit post-trial briefs by February, and more in-court arguments are expected early next year before she reaches a verdict. Many feel this will wind up before the Supreme Court, and outside the courthouse Friday, both sides acknowledged the case is likely far from over.
“It’s quite clear what this case is about … SFFA wants to eliminate 1,000 African-Americans and Hispanics from the Harvard campus,” Lee said. “If that’s going to happen, it’s going to be a decision of some significance by a court of some significance, but that would be a big change in the law, it would be a big change for universities like Harvard and, personally, I think it would be a disaster for the country.”
“It would be a very, very sad day in history,” added fellow WilmerHale lawyer Seth Waxman, “given how far we have come and yet the kind of divisions as a country we face politically and among different racial and ethnic and geographic groups. This is the way forward, not the way SFFA is proposing to take us.”
Asked whether he expects the matter is headed for the high court, the anti-affirmative-action legal strategist behind the suit, Edward Blum, said "common wisdom says that it is." Blum has already guided six cases to the Supreme Court, including the 2013 case Fisher v. Texas, which upheld the use of race in college admissions.
"We are respectful of Judge Burroughs. She is going to do an excellent job. We are not thinking about anything beyond that right now," said SFFA attorney William S. Consovoy of Consovoy McCarthy Park PLLC, later adding, "We are committed to this case until the end."
Consovoy will likely handle the appeal for SFFA if the case continues beyond the district court level, as expected, while Waxman and WilmerHale's Paul Wolfson would lead Harvard's side.
Competing expert data dominated much of the trial and each side accuses the other of cooking the numbers to fit the result they wanted to see. SFFA left out crucial groups of students, such as athletes and legacies, and excluded variables like intended career and parental occupation, Harvard said, because they made the alleged "Asian penalty" disappear.
Harvard argues that data showing a positive effect for being Asian for athletes, legacies, Dean's List students, and children of faculty, Asian-American students from California, and female students is more than enough to show that Harvard did not discriminate.
Harvard also criticized SFFA's expert for omitting the controversial personal rating from his data set, but SFFA said that rating cannot be factored in, because it is influenced by race.
"The statistical case is over, once you resolve that factual dispute in our favor," Hughes told Judge Burroughs.
A 2013 investigation by Harvard's own Office of Institutional Research also showed Asian-Americans were at a disadvantage and the school knew it had a problem at the time, but did nothing, SFFA claimed, pointing to contemporaneous internal emails by admissions officials.
The trial dug into the once-secret Harvard admissions process and drew considerable public interest. The fifth-floor courtroom was often packed with a standing-room-only crowd. The Trump administration weighed in, siding with SFFA and accusing Harvard of "racial balancing." The other Ivy League schools backed Harvard, which insisted a diverse campus benefits all students, as did a group of diverse students and more than two dozen student and alumni organizations on the Cambridge, Massachusetts, campus.
The students and organizations were allowed to participate by Judge Burroughs as amici, and gave their own closing statements Friday. Both of them noted that none of the anonymous SFFA plaintiffs testified or submitted their rejected applications during the trial.
"Behind the dueling statistical data in this case, are real people," Cara McClellan of the NAACP Legal Defense and Educational Fund told the judge. "Their testimony made clear that the dramatic reduction in Black and Latinx students on campus from the loss of race-conscious admissions, estimated at 50 percent, would be devastating for all Harvard students."
"I feel privileged to participate in a trial where the lawyering has been so exceptional," Judge Burroughs said as the trial concluded. "The issues raised in this case are incredibly important, both to the parties in this case, but also to the world ... I hope our final work product is worthy of the effort put into it."
Students for Fair Admissions is represented by Adam K. Mortara, J. Scott McBride, John M. Hughes, Katherine L.I. Hacker and Krista J. Perry of Bartlit Beck Herman Palenchar & Scott LLP, William S. Consovoy, Thomas R. McCarthy, Michael H. Park, John Michael Connolly and Patrick Strawbridge of Consovoy McCarthy Park PLLC, and Paul M. Sanford of Burns & Levinson LLP.
Harvard is represented by Seth P. Waxman, Paul R.Q. Wolfson, Daniel Winik, Debo P. Adegbile, William F. Lee, Felicia H. Ellsworth, Andrew S. Dulberg, Elizabeth C. Mooney and Danielle Conley of WilmerHale.
The amici students are represented by Oren M. Sellstrom, Genevieve Bonadies Torres, Kristen Clarke, Jon M. Greenbaum and Brenda Shum of the Lawyers' Committee for Civil Rights, Nicole K. Ochi of Asian Americans Advancing Justice and Lawrence Culleen, Nancy Perkins, Steven Mayer and Emma Dinan of Arnold & Porter.
The amici organizations are represented by Cara McClellan, Earl A. Kirkland III, Janai S. Nelson, Jennifer A. Holmes, Jin Hee Lee, Michaele N. Turnage Young, Rachel M. Kleinman, Samuel Spital and Sherrilyn A. Ifill of the NAACP Legal Defense and Educational Fund Inc. and Kathryn Rebecca Cook and Kenneth N. Thayer of Sugarman Rogers Barshak & Cohen PC.
The case is Students for Fair Admissions v. President and Fellows of Harvard College, case number 1:14-cv-14176, in the U.S. District Court for the District of Massachusetts.
--Editing by John Campbell.
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0 Comments
下一步就是等待 Judge Burroughs 的 decision 了，我估计在进一步brief后大概还得几个月 （这篇报道里说了，judge已经让双方在明年2月前再进一步brief, 然后还会有 arguments. 这本身是极不寻常的，judge知道会有appeal, 会有高院的appeal, 这么做是为了给双方机会，让record更complete)。等有了决定，我再来更新。以后有appeal, 我们再跟踪。谢谢大家这段时候的跟帖和讨论。
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