Harvard Trial Kicks Off With Opening Statements, First Witness Testimony

Lawyers on both sides made opening statements and the first witness testified today in a federal court in Boston, where Harvard is defending itself against accusations of discriminating against Asian-American students.

The lawsuit filed in 2014 challenges the way Harvard considers race as one factor in undergraduate admissions, a process that the Supreme Court has previously held up as a model going back 40 years. Other selective private colleges around the country use a similar whole-person review in selecting students.

Inside the cramped courtroom filled to the brim with lawyers, spectators and reporters, Students for Fair Admissions, or SFFA, opened their case with a simple accusation: Harvard admissions practices are unfair to Asian Americans.

“Harvard is engaged in and wishes to continue to engage in intentional discrimination against Asian Americans,” Adam Mortara, a lawyer for SFFA, said in his opening statement.

The bulk of his argument was backed by a couple of central pieces of evidence, namely, documents outlining Harvard’s admissions process. Mortara also pointed to a 2013 internal Harvard study that showed administrators knew academically qualified Asian-Americans were at a statistical disadvantage but failed to take any action.

Mortara argued that while records show Asian-American applicants do very well on objective variables, like test scores, they don’t do nearly as well on Harvard’s personal rating system. He said that while Asian Americans outperformed their white counterparts on SAT scores and grades, they were admitted at about half the rate of white students.

Mortara also claimed that Harvard’s standards on its personal rating negatively impacts Asian-American applicants, while at the same time benefiting students like athletes and legacy admissions.

He denied the case aims to bring down the practice of affirmative action or the use of race in admissions.

“This trial is about what Harvard has done and is doing to Asian-American applicants,” Mortara said.

Bill Lee, who is representing Harvard, said in his opening statement that Harvard uses race as one of many factors, but that it does not use it as a main factor and doesn’t disqualify students because of their race.

“Harvard does not discriminate and has not discriminated against Asian-Americans,” Lee said.

Lee pointed to years of Supreme Court precedents defending the use of race in college admissions and said that while race can be used as a tipping point in an admission decision, so can other factors, such as where a student grew up or a student's economic background.

He warned that if Harvard loses, it could be a blow to efforts to diversify campuses across the country.

“This, of all times, is not the time to go back,” he said.

Lee, a partner at WilmerHale in Boston, was the first Asian American to lead a major American law firm. He is also a member of the Harvard Corporation, the university’s governing board. He is Chinese American.

Mortara, the lead-off lawyer for SFFA, is a partner with Bartlit Beck Herman Palenchar & Scott LLP and a lecturer at the University of Chicago Law School. He clerked for Supreme Court Justice Clarence Thomas and has been affiliated with the conservative Federalist Society of lawyers. He is white.

A group of multiracial students filing on behalf of Harvard also released an opening statement, as did the NAACP.

While there are students who are part of the lawsuit from SFFA, none of them will be testifying over the next three weeks. They have chosen to remain anonymous, and lawyers from both sides have gone along with that decision for different reasons. SFFA wants to protect them from any negative feedback, while Harvard wants to protect the privacy of those students' applications.

William Fitzsimmons, the longtime dean of admissions for Harvard, was the first witness that SFFA called to the stand. He was questioned about Harvard’s recruiting and admissions practices.

Lawyers for SFFA alleged white students in rural America with lower scores would still be favored over Asian-Americans with higher scores.

Fitzsimmons denied Harvard was practicing racial discrimination, saying the university is looking for people from all kinds of backgrounds.

The trial will resume tomorrow with more of Fitzsimmons’ testimony.