Landmark Harvard Admissions Trial Begins In Boston
Law360, Boston (October 15, 2018, 4:54 PM EDT) -- A group of Asian American applicants rejected by Harvard University said the school’s admissions process has a statistically significant “Asian penalty” that benefits other racial groups, while the university insisted its process is fair, thorough and in line with U.S. Supreme Court precedent, as a closely watched bench trial began Monday in Boston.
As protesters gathered outside the federal courthouse, lawyers, reporters and members of the public packed the fifth floor courtroom of Judge Allison D. Burroughs for the start of the three-week trial. Students for Fair Admissions, led by anti-affirmative action advocate Edward Blum, said Harvard’s use of race as a factor for admissions has led to Asian Americans being rejected from the Ivy League School despite consistently outperforming their white counterparts academically and in terms of extracurriculars.
The suit has drawn interest from the Trump administration, which backed the rejected students who say Harvard tries to illegally balance its students by giving otherwise highly qualified Asian students low scores on a highly subjective personality scale. Observers believe the case may be on the road to the Supreme Court someday, but SFFA lawyer Adam K. Mortara of Bartlit Beck Herman Palenchar & Scott LLP downplayed the wide-ranging impact Monday morning.
“The future of affirmative action is not on trial here in the next couple of weeks; the Supreme Court has held race can be used in a narrowly tailored way — diversity and its benefits are not on trial; SFFA supports diversity,” Mortara told Judge Burroughs. “This trial is about what Harvard has done and is doing against Asian American applicants and how far Harvard has gone in its zeal to use race in its admissions process.”
SFFA contends that Asian applicants are “penalized” for their race at a rate of about one-third of 1 percent, a margin they say is statistically significant especially when considering that only about 5 percent of applicants get into the highly selective school. But Harvard defended its policies, calling its admissions process one that has twice been cited by the Supreme Court as a model for other universities. Race is a factor, Harvard admits, but only a “plus-factor” and never used against an applicant.
“At this time, Harvard cannot achieve its educational goals without using race; either its classes will be radically less diverse or suffer in other ways,” said William F. Lee of Wilmer Cutler Pickering Hale & Dorr LLP, an attorney for the school who said that Harvard actually actively seeks out candidates from all backgrounds, including Asian.
“The precise group the plaintiff says we are discriminating against is a group we are actively recruiting on a daily basis,” Lee said.
The case may turn on the credibility of competing analyses of the data behind Harvard’s admissions process, as Judge Burroughs indicated when she recently denied cross summary judgment motions by the two sides. SFFA said its expert will testify that the numbers are conclusive that Asian American applicants bear the brunt of Harvard’s affirmative action policies. But Lee panned that study as unreliable.
“They are living proof that, if you torture the data long enough, it will admit to anything,” he said.
Central to the alleged discrimination, SFFA said, is the personal rating, which it says is the most reliable indicator of whether an applicant will be admitted unless he or she is a recruited athlete, a legacy or the child of a university faculty member. While Harvard provides extensive criteria on other admissions factors, it has simple and unspecific categories for personal evaluation, such as “outstanding,” “very strong,” "generally positive,” “bland” or “questionable person.”
“Harvard’s witnesses in this trial will be nearly as vague as what you’re seeing on the screen, ‘Is this person likeable, would they be a good roommate?’ … It’s a subjective assessment, with essentially no guidance, about the applicant’s likeability,” Mortara said. “Asian Americans receive substantially lower personal ratings than white applicants.”
The racial “tip” has most benefited African American applicants and harmed Asian American applicants, SFFA argued. There is no explanation for that, Mortara said, other than race.
Harvard rebuked that notion, saying that in the six years of data included in discovery, there are three years in which Asian American applicants seemed to have a slight benefit and three other years where they fared slightly worse, but none of the data was significant enough to show discrimination. The numbers also show that Asian women and all Asian Americans from California did better than other applicants, the school argued.
“This would surely be an odd result if we had this massive clandestine scheme to discriminate against Asian Americans,” Lee said.
Lee said that admission to Harvard, mathematically, cannot be only about grades. For the class of 2019, there were 2,741 applicants with perfect SAT verbal scores, 3,450 with perfect math SAT scores and 8,176 with perfect GPAs.
"There are simply more academically qualified applicants than there are spots," Lee said, so other factors may be, and must be, used.
Lee also said the number of Asian Americans getting in is climbing, up to 23 percent in the class of 2022. But Mortara addressed the rise during his opening statement as a product of the 2014 lawsuit, calling it more circumstantial evidence of discrimination.
Harvard's dean of admissions and financial aid, William Fitzsimmons, took the stand Monday afternoon and his testimony in the case is scheduled to continue on Tuesday. The start of the case drew considerable public interest, with dozens cramming into the courtroom and into an overflow courtroom and with others holding signs outside that read “Harvard: No More Racial Stereotyping” and “My Race Should Not Hurt Me In Admissions.”
A diverse group of Harvard students and alumni and a group of 25 Harvard minority student and alumni organizations, both of which back Harvard in the suit, have been allowed to participate in the case as amici and both gave opening statements Monday.
Genevieve Bonadies Torres of the Lawyers Committee for Civil Rights told Judge Burroughs the students she represents will testify that racial diversity resulted in a better education for them. Torres said white students, not Asian Americans, would benefit most from eliminating race from consideration and African Americans would be the group hardest hit.
During the final opening statement of the day, Jennifer Holmes of the NAACP Legal Defense & Educational Fund, representing the student & alumni groups who back the school, said, "They joined this case because their racial identities matter to who they are and how they shape Harvard."
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 Wilmer Cutler Pickering Hale & Dorr LLP.
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 Kaye Scholer LLP.
The amici groups 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 by 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 Alyssa Miller.
As protesters gathered outside the federal courthouse, lawyers, reporters and members of the public packed the fifth floor courtroom of Judge Allison D. Burroughs for the start of the three-week trial. Students for Fair Admissions, led by anti-affirmative action advocate Edward Blum, said Harvard’s use of race as a factor for admissions has led to Asian Americans being rejected from the Ivy League School despite consistently outperforming their white counterparts academically and in terms of extracurriculars.
The suit has drawn interest from the Trump administration, which backed the rejected students who say Harvard tries to illegally balance its students by giving otherwise highly qualified Asian students low scores on a highly subjective personality scale. Observers believe the case may be on the road to the Supreme Court someday, but SFFA lawyer Adam K. Mortara of Bartlit Beck Herman Palenchar & Scott LLP downplayed the wide-ranging impact Monday morning.
“The future of affirmative action is not on trial here in the next couple of weeks; the Supreme Court has held race can be used in a narrowly tailored way — diversity and its benefits are not on trial; SFFA supports diversity,” Mortara told Judge Burroughs. “This trial is about what Harvard has done and is doing against Asian American applicants and how far Harvard has gone in its zeal to use race in its admissions process.”
SFFA contends that Asian applicants are “penalized” for their race at a rate of about one-third of 1 percent, a margin they say is statistically significant especially when considering that only about 5 percent of applicants get into the highly selective school. But Harvard defended its policies, calling its admissions process one that has twice been cited by the Supreme Court as a model for other universities. Race is a factor, Harvard admits, but only a “plus-factor” and never used against an applicant.
“At this time, Harvard cannot achieve its educational goals without using race; either its classes will be radically less diverse or suffer in other ways,” said William F. Lee of Wilmer Cutler Pickering Hale & Dorr LLP, an attorney for the school who said that Harvard actually actively seeks out candidates from all backgrounds, including Asian.
“The precise group the plaintiff says we are discriminating against is a group we are actively recruiting on a daily basis,” Lee said.
The case may turn on the credibility of competing analyses of the data behind Harvard’s admissions process, as Judge Burroughs indicated when she recently denied cross summary judgment motions by the two sides. SFFA said its expert will testify that the numbers are conclusive that Asian American applicants bear the brunt of Harvard’s affirmative action policies. But Lee panned that study as unreliable.
“They are living proof that, if you torture the data long enough, it will admit to anything,” he said.
Central to the alleged discrimination, SFFA said, is the personal rating, which it says is the most reliable indicator of whether an applicant will be admitted unless he or she is a recruited athlete, a legacy or the child of a university faculty member. While Harvard provides extensive criteria on other admissions factors, it has simple and unspecific categories for personal evaluation, such as “outstanding,” “very strong,” "generally positive,” “bland” or “questionable person.”
“Harvard’s witnesses in this trial will be nearly as vague as what you’re seeing on the screen, ‘Is this person likeable, would they be a good roommate?’ … It’s a subjective assessment, with essentially no guidance, about the applicant’s likeability,” Mortara said. “Asian Americans receive substantially lower personal ratings than white applicants.”
The racial “tip” has most benefited African American applicants and harmed Asian American applicants, SFFA argued. There is no explanation for that, Mortara said, other than race.
Harvard rebuked that notion, saying that in the six years of data included in discovery, there are three years in which Asian American applicants seemed to have a slight benefit and three other years where they fared slightly worse, but none of the data was significant enough to show discrimination. The numbers also show that Asian women and all Asian Americans from California did better than other applicants, the school argued.
“This would surely be an odd result if we had this massive clandestine scheme to discriminate against Asian Americans,” Lee said.
Lee said that admission to Harvard, mathematically, cannot be only about grades. For the class of 2019, there were 2,741 applicants with perfect SAT verbal scores, 3,450 with perfect math SAT scores and 8,176 with perfect GPAs.
"There are simply more academically qualified applicants than there are spots," Lee said, so other factors may be, and must be, used.
Lee also said the number of Asian Americans getting in is climbing, up to 23 percent in the class of 2022. But Mortara addressed the rise during his opening statement as a product of the 2014 lawsuit, calling it more circumstantial evidence of discrimination.
Harvard's dean of admissions and financial aid, William Fitzsimmons, took the stand Monday afternoon and his testimony in the case is scheduled to continue on Tuesday. The start of the case drew considerable public interest, with dozens cramming into the courtroom and into an overflow courtroom and with others holding signs outside that read “Harvard: No More Racial Stereotyping” and “My Race Should Not Hurt Me In Admissions.”
A diverse group of Harvard students and alumni and a group of 25 Harvard minority student and alumni organizations, both of which back Harvard in the suit, have been allowed to participate in the case as amici and both gave opening statements Monday.
Genevieve Bonadies Torres of the Lawyers Committee for Civil Rights told Judge Burroughs the students she represents will testify that racial diversity resulted in a better education for them. Torres said white students, not Asian Americans, would benefit most from eliminating race from consideration and African Americans would be the group hardest hit.
During the final opening statement of the day, Jennifer Holmes of the NAACP Legal Defense & Educational Fund, representing the student & alumni groups who back the school, said, "They joined this case because their racial identities matter to who they are and how they shape Harvard."
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 Wilmer Cutler Pickering Hale & Dorr LLP.
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 Kaye Scholer LLP.
The amici groups 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 by 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 Alyssa Miller.
