Federal Judges Hear Appeal In Harvard Admissions Case

A federal appeals court in Boston heard arguments Wednesday in the case charging that Harvard discriminates against Asian American applicants. At stake is more than four decades of precedent that says college officials can consider race when deciding which students to admit.

In a stilted, virtual hearing online, the Students for Fair Admissions, or SFFA, cited its own expert’s statistical analysis and argued Harvard intentionally discriminates against Asian Americans by systemically rating them lower on personality traits like courage, leadership and integrity.

“This case was always about racial profiling,” SFFA’s lead counsel, William Consovoy, told a three-judge panel. “Either Asian Americans have worse personalities, or something is awry.”

Harvard’s lead lawyer, Seth Waxman, denied that charge, saying “race was not the factor” and he pointed out that over the course of a three-week trial, SFFA never offered a single application that showed intentional bias or discrimination. Instead, he said SFFA relied on data and what he described as a flawed statistical model.

“Just looking at the statistical evidence alone, the model doesn’t demonstrate any attempt by admissions officers to discriminate based on racial identity,” Waxman said.

For over an hour, the judges peppered both sides with questions about Supreme Court precedent, Harvard’s personality rating, letters of recommendation, legacy admissions and evidence that might prove intentional discrimination against Asian Americans.

“You seem to argue that Harvard can’t use subjective criteria at all,” suggested Judge Sandra Lynch, who Bill Clinton nominated to the First Circuit Court of Appeals.

“We are not arguing that Harvard’s system is discriminatory because it uses subjective criteria,” Consovoy responded. “We are saying it is more susceptible to stereotyping and bias infiltrating its system because it uses subjective criteria.”

Supporting the plaintiffs, a Justice Department lawyer argued Harvard’s “race-based” admissions process violates federal civil rights law.

“Harvard engaged in unlawful racial balancing,” maintained Eric Dreiband, assistant attorney general for civil rights. “Because Harvard admits it uses race in its admission process, strict scrutiny applies and Harvard bears the burden of demonstrating that its use of race is narrowly tailored.”

Strict scrutiny is the highest standard of legal review in American courts.

Dreiband said Harvard’s admissions process and personal rating scores unduly burden Asian American applicants relative to white and other applicants.

“Asian American applicants year over year over year are being admitted lower than their presence in the applicant pool,” he said.

Ever since this lawsuit was first filed in 2014, Harvard has repeatedly denied that allegation, saying its admissions philosophy complies with the law. The college notes that the percentage of admitted Asian American students spiked to its highest level ever — 25 percent – while Asian Americans make up 6 percent of the country's population.

Jin Hee Lee argued on behalf of the NAACP Legal Defense and Education Fund, which filed a brief representing 26 Harvard student and alumni groups, including 10 Asian American organizations. Near the end of the hearing, she spoke in support of Harvard and the value of diversity on campus.

“SFFA would have Black students — more than students of any other racial group — suffer the most from their preferred race-neutral alternative,” Lee said. “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, which has revealed systemic, pervasive and longstanding discrimination in the Black community.”

Ahead of the afternoon hearing, Harvard’s key witness spoke out in an interview with GBH News, defending the college’s admissions policies. Ruth Simmons is the president of Prairie View A&M University in Texas. In 2001, the daughter of sharecroppers became the first African American to lead an Ivy League institution, Brown University.

In a three-week trial mired in statistics and quantitative analysis, Simmons emerged as Harvard’s key witness. U.S. District Judge Allison Burroughs called her personal story “perhaps the most cogent and compelling testimony presented at this trial.”

On Wednesday, Simmons said that after a summer of racial reckoning, the consideration of race in admissions is more important than ever.

“Under ideal circumstances, we should not have to consider race,” Simmons said. “But we are in far from ideal circumstances.”

In a statement released before the hearing, Edward Blum, the conservative political strategist behind Students for Fair Admissions known for his opposition to considering race in any decision-making, said Burroughs “virtually ignored Harvard’s own internal studies that determined the negative chance of getting into Harvard by virtue of being Asian American.”

“It is our hope the appeals court will reverse the district court’s opinion, but we are prepared to take this case to the U.S. Supreme Court if necessary,” Blum said.

The three-judge panel’s decision is expected as early as this winter. Besides Lynch, the other members of the panel are Juan Torruella and Jeffrey Howard. Torruella was nominated by Ronald Reagan, Howard by George W. Bush. Torruella, born in Puerto Rico, is Hispanic; Lynch and Howard are white.

Half of the First Circuit's judges are Harvard alumni, but none are on the panel, which was selected at random. That outcome suggests at least some of the Harvard-educated judges recused themselves.