Harvard Bias-Trial Judge Rejects College's Bid to Dismiss Suit

(Bloomberg) -- Harvard, the nation’s oldest university, must go to trial to defend a lawsuit claiming it discriminates against Asian-American applicants.

A Boston federal judge’s rejection Friday of requests by both sides for a win before trial sets up a final showdown set to begin Oct. 15 in which she will decide a case that’s likely to end up at the U.S. Supreme Court.

The 2014 lawsuit, filed by the Students for Fair Admissions, an anti-affirmative action group, has already brought increased scrutiny to the admissions policies at Harvard and the country’s other elite colleges.

Harvard is accused of discriminating against Asian-American applicants by using a subjective personal rating system of candidates that is biased against them. The plaintiffs also argue Harvard ignored evidence from its own researchers showing bias and intentionally tried to “kill” an internal investigation.

The Ivy League school said its consideration of race, “as one factor among many” in the admissions process, is legal under Supreme Court precedent. And it argued the plaintiff is unable to show how Harvard could provide the educational benefit of a diverse student body while remaining blind to race.

‘Race-Neutral’

U.S. District Judge Allison Burroughs, who will hear the case without a jury, said in a 40-page decision on Friday that SFFA has raised “a material issue” as to whether Harvard acted in “serious good faith” in considering whether “race-neutral alternatives” would enable it to assemble a diverse student body.

Whether SFFA “may prove its intentional discrimination claim requires a close review of the conflicting expert testimony, the available documents and the testimony of the admissions office employees in the context of a trial,” Burroughs said.

She said a trial was necessary as both sides relied heavily upon an expert statistical analysis and came to conflicting conclusions after reviewing hundreds of applications from the classes of 2014 through 2019.

“The credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial,” she said.

Growing Share

Anna Cowenhoven, a spokeswoman for Harvard, said the college looks forward to a trial.

“From the start, Harvard has agreed with the view expressed today by the court, that this case can be -- and should be -- resolved at trial,” she said. “Thorough and comprehensive analysis of the evidence makes clear that Harvard College does not discriminate against applicants from any group, including Asian Americans, whose share of the admitted class has grown significantly by 27 percent since 2010.”

SFFA is led by Edward Blum, who’s orchestrated lawsuits challenging affirmative practices, including one against the Universitiy of Texas. Blum declined to comment on Friday’s ruling. William Consovoy, a lawyer for the group, didn’t respond to voicemail and email messages seeking comment.

Harvard argued that it should be granted a win before trial because the student group’s arguments were based on “invective, mischaracterizations and in some cases outright misrepresentations.” Every year it receives about 40,000 applications for the 1,600 seats in its freshman class and the school said it uses a “holistic” admissions process that doesn’t narrowly focus on grades and test scores, but also identifies engaged and creative students and seeks to create a diverse student body.

While SFFA argued Harvard buried an internal report that concluded its application process discriminated against Asian-Americans, Burroughs said Friday there was evidence that this was a “preliminary and incomplete” study. She wants to hear from Harvard witnesses herself, saying, it “requires the court to assess the credibility of Harvard’s winnesses and to consider expert testimony.”

The Justice Department, which is investigating the admissions policies at both Harvard and Yale University, has filed court papers backing the students’ group.

Harvard admitted 4.59 percent of the applicants to its class of 2022. Women represented 50.1 percent of those accepted; African-Americans 15.5 percent; Latinos 12.2 percent; and Native Americans 2 percent, according to the Harvard Crimson. Asian-Americans made up a record 22.7 percent of the class.

The case is Students for Fair Admissions Inc. v. President and Fellows of Harvard College, 14-cv-14176, U.S. District Court, District of Massachusetts (Boston).

To contact the reporters on this story: Patricia Hurtado in Federal Court in Manhattan at pathurtado@bloomberg.net;Janelle Lawrence in Boston at jlawrence62@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Elizabeth Wollman, Peter Blumberg

©2018 Bloomberg L.P.