Racial ‘Wolf’ Ends Harvard Trial in Blasts of Blame and Warning

(Bloomberg) -- A lawyer defending Harvard against claims it discriminates against Asian-American applicants concluded a three-week trial by arguing that the “real wolf of racial bias” was the plaintiff, which he said seeks to upend decades of affirmative action in college admissions approved by the U.S. Supreme Court.

The wolf is “at Harvard’s door,” William Lee told the court in his closing statement, alluding to the metaphor his adversary Adam Mortara had introduced at the trial’s outset. “But that wolf is not intentional discrimination against Asian-Americans by Harvard’s admissions office.”

Instead, Lee told U.S. District Judge Allison Burroughs in Boston, it is those “who would eviscerate the progress we have made” in “pursuing not just sanctioned but lauded race-conscious admissions policies.”

The plaintiff, Students For Fair Admissions, sued in 2014, claiming Harvard College tips the scales against Asian-American applicants in favor of other minorities. SFFA, led by affirmative action opponent Edward Blum, has presented an economist’s analysis to show that Harvard limits the number of Asians it accepts by giving them a lower personal rating, one of several major categories the school uses in its admissions process.

John Hughes, an attorney for SFFA, said in his closing argument that the college employs an illegal quota system to boost African-American and Hispanic applicants and suppress Asians. He said analysis of admissions data showed bias had “crept” into the system to create an “Asian penalty.” Hughes said that in the top academic tier of students who applied and also got a top overall rating, a strong indicator of likely admission, African-American students led, followed by Hispanics and then whites, with Asian-Americans “last every single time.”

Later in the day, after Lee showed that some groups of Asian-Americans -- like those from California, women and those who are children of alumni -- have a higher rate of admission than other groups, Mortara replied, “No one ever said Harvard didn’t want Asians. They just don’t want too many.”

The plaintiff says it wants to change only Harvard and only on behalf of one group, but its suit seeks the end of race as an admissions factor at the school and, if successful, could transform college admissions across the country. President Donald Trump’s Justice Department, which is probing possible bias in admissions at Harvard and Yale universities and has removed guidelines from the Obama administration that urged schools to take race into account, supports SFFA’s case, calling the admissions process “infected with racial bias.”

Whoever loses the Boston trial is likely to challenge it all the way to the U.S. Supreme Court, where the conservative Brett Kavanaugh has replaced Anthony Kennedy, the swing vote in a 2016 decision affirming race-conscious admissions.

Harvard has countered with its own data analysis, which it says proves that race is just one factor among others it uses in determining admission, including geography, family income and educational background, and the student’s intended area of study.

On Friday, Lee contended that SFFA wanted to turn back the clock on racial diversity after repeatedly losing cases before the high court. Both Lee and Seth Waxman, a former U.S. solicitor general who joined in Harvard’s closing, stressed that SFFA’s analysis omitted a group of applicants that includes athletes, children of alumni and staff, and those on a special dean’s list for relatives of major donors and others with unusual circumstances. The groups make up 5 percent of those who apply but 30 percent of those who get in, according to Harvard data.

The Supreme Court has allowed colleges to take an “individualized and holistic” approach that includes using race in a limited way, Lee said. Rather than a subjective measure imposed by one person, he said, the personal rating is based on such factors as teacher and guidance counselor recommendations and alumni interviews. As many as 200 variables can also be considered, he said.

While SFFA says it has 20,000 members, Lee pointed out that it hadn’t called any of the Asian-American students the group says were denied admission to Harvard because of racial bias, nor shown the court any of their records. The only current or former Harvard students who testified at the trial were students who spoke in support of the college and its diversity program.

“If there was an application filed after all of this that showed discrimination, wouldn’t we have seen it?” Lee said.

Burroughs, named to the bench by Barack Obama in 2014, is hearing the case without a jury. At the end of court Friday, she told lawyers to submit written arguments in the coming weeks and return to court to deliver a second round of closing statements. It’s unclear when she’ll issue her ruling.
After almost five hours of closing statements, the judge, who has asked the lawyers and their experts pointed questions throughout the trial, commended both sides.

“I don’t know if I’ll have another case in my career where the presentation has been so professional, thoughtful and exceptional,” Burroughs said, adding, “It’s been a privilege. I hope our final work product is worthy of the effort of you all.”

©2018 Bloomberg L.P.