Judge Rules Harvard Does Not Discriminate Against Asian-Americans

A federal district judge ruled Tuesday that Harvard does not discriminate against Asian-American applicants in its admissions process.

Judge Allison Burroughs handed down her decision in Boston nearly a year after a three-week trial in which the group Students for Fair Admissions claimed that Harvard held Asian-Americans to higher standards than other groups of applicants. Throughout the course of the trial, Harvard adamantly denied these charges.

"For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions. Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny," Burroughs wrote in her decision.

The decision comes in a lawsuit that was orchestrated in 2014 by the founder of Students for Fair Admissions, Ed Blum. The conservative legal strategist was behind another lawsuit on behalf of a white student who claimed she was denied entrance to the University of Texas because of its use of race in admissions to foster diversity.

That case, Fisher v. University of Texas, eventually made its way to the Supreme Court. The court sided with the university in 2013 and again in a 2016 ruling.

Read more: Read The Judge's Ruling In Students for Fair Admissions (SFFA) vs. Harvard

In a statement, Harvard President Lawrence Bacow applauded the judge's decision, writing that "today we reaffirm the importance of diversity—and everything it represents to the world."

"The consideration of race, alongside many other factors, helps us achieve our goal of creating a diverse student body that enriches the education of every student. ... The power of American higher education stems from a devotion to learning from our differences. Affirming that promise will make our colleges, and our society, stronger still," Bacow said.

Harvard's lead lawyer, Bill Lee, said in a statement that the decision "unequivocally affirms that Harvard does not discriminate on the basis of race in its admissions process, and that Harvard’s pursuit of the diverse student body central to its educational mission is lawful."

"As the court has recognized, now is not the time to turn back the clock on diversity and opportunity," Lee said.

In a statement, Blum expressed disappointment in Burroughs' ruling.

"Students for Fair Admissions is disappointed that the court has upheld Harvard’s discriminatory admissions policies," he said. "We believe that the documents, emails, data analysis and depositions SFFA presented at trial compellingly revealed Harvard’s systematic discrimination against Asian-American applicants.”

Blum added that he and SFFA plan to appeal the decision to the First Court of Appeals in Boston "and, if necessary, to the U.S. Supreme Court."

WGBH legal analyst Daniel Medwed predicted that successfully appealing the judge's ruling would be "very difficult for the plaintiffs."

"Burroughs made an extensive effort to find facts and to ground her decision in the application of those facts to the relevant legal standard. Decisions like that are very difficult to overturn on appeal because they are afforded tremendous deference by appellate courts," Medwed said.

Ted Hui, a PhD student studying East Asian studies at Harvard, said he was not surprised that the judge ruled in Harvard's favor. Hui said that he largely agreed with the decision, and felt uncomfortable about what he viewed as conservatives using the case as a larger argument against what he called affirmative action.

"There is a sense that Asian-Americans have been put onto the spot to make a case, basically. I feel like it's a very strange situation, because ... if it's only [about] fighting for Asian-Americans' rights, I'm all for it, but the problem is that it doesn't seem like that's the case. It seems like ... it's being used as a negotiation tool," Hui said.

Suhaas Bhat, a freshman at Harvard, likened the case to a "false flag" and said he believes legacy admissions at Harvard deserve more scrutiny than the consideration of race in the admissions process.

"When you look at the historical class of Harvard at least a couple hundred years ago, it was all white. So if we're going to talk about keeping power at the top, then we should be talking about the influence that legacy admissions play," Bhat said. "Race is an important thing to consider, but we should consider that legacy admissions are a far bigger deal than Harvard's race considerations, because these are implicitly race-based."

An Asian-American man who said he is a PhD student at Harvard said he disagrees with the judge's decision. He asked for his name not to be used for fear of retaliation.

"I'm saddened by the decision because I always felt that higher education should not be basing their admissions on race at all," he said. "... I don't think we necessarily need affirmative action based on race alone. Even better, I think it should be something that's based on socio-economic status. ... I'm not against the idea of using affirmative action to give [an] advantage to certain groups of people, but I don't think it should be based on race."

During the trial in Boston last fall, lawyers representing SFFA pointed to internal correspondence from Harvard officials that were made public during the course of the case.

Those included a 2013 internal investigation into Harvard's admissions record that found that, in some cases, Asian-American applicants were described with stereotypical terms such as "quiet, shy or math or science oriented" and lumped together with other applicants of the same race. Lawyers for SFFA claimed this reflected negatively on applicants' personal ratings, which the university uses to evaluate intangible qualities prospective students would bring to campus. If low enough, the personal rating could potentially deny a student admission.

The lead lawyer for SFFA, Adam Mortara, is a partner at Bartlit Beck LLP in Chicago and a lecturer at the University of Chicago.

Since no Asian Americans who claimed they were unfairly denied admission to Harvard testified during the the trial, Mortara and his team focused their case around statistics along with a handful of internal messages they presented as evidence.

SFFA's lawyers brought in Peter Arcidiacono, an economics professor at Duke University whose analysis concluded discrimination against Asian-American applicants had occurred and two-thirds of African Americans and one-half of Hispanics who got in to Harvard were admitted due to racial considerations.

Burroughs said she found "no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans."

Harvard tapped as its lead lawyer, Bill Lee, as a senior fellow at the Harvard Corporation and a lecturer at Harvard Law School.

Lee and his team focused on trying to discredit the research presented by SFFA and calling to the stand current and former Harvard students to testify about their own experiences on campus and what they see as the benefits of considering race in admissions.

Harvard's defense cited the value the university places on diversity and pointed out that 23 percent of the student population is currently Asian-American. Since 2010, the percentage of admitted Asian-American students has increased from 17 percent to 25 percent in this fall's incoming class.

The lawyers also pointed to the most glaring omission in SFFA's case: the lack of any Asian-Americans who were willing to testify that they were denied admission because of their race. SFFA's lawyers said someone would have "done something horrible" to any students who dared to testify.

Harvard also called David Card, an economics professor from the University of California at Berkeley who did his own analysis of Harvard's admissions process, as an expert witness. In his testimony, Card said Arcidiacono's research was grounded in a misunderstanding of how Harvard's admissions process worked.

In its defense, Harvard also presented testimony from former Harvard president Drew Faust and Ruth Simmons, the former president at Brown University and the first black president of an Ivy League institution.

Burroughs said Simmons, who rose up the academic ranks from the segregated South, gave "perhaps the most cogent and compelling testimony presented at this trial."

Throughout the three week trial, Burroughs, who was nominated by Barack Obama and has served as a US District Court judge since 2014, listened and carefully poked and prodded the lawyers with questions of her own from time to time. This was her first trial without a jury.

Towards the end of testimony, Burroughs asked both sides directly about the Achilles heel in their cases. With Harvard, she questioned what she was supposed to do with data that shows Asian-Americans scored lower on personal ratings. (Harvard said SFFA failed to show a link to direct discrimination.) She also noted that SFFA had a problem with no alleged victims taking the stand.

"The judge had thousands of pages of student depositions to review. Putting the students on the stand would have jeopardized their personal safety," Blum said in an interview with WGBH News.

Over the course of the trial, a bit of drama popped up when The New York Times reported that Burroughs had applied to Harvard and was rejected, even though her father helped raise money for the school. She went to Middlebury College and the University of Pennsylvania School of Law.

WGBH News' Tori Bedford and Kaitlyn Locke contributed to this report.

This article has been updated.