Attorney Adam K. Mortara, representing the plaintiff, homed in repeatedly on statistical analyses that he said show Harvard gives Asian Americans significantly lower ratings for subjective personal qualities, including leadership and compassion, than applicants from other racial groups. That rating, he said, is often crucial to the outcome.
“Harvard has engaged in, and continues to engage in, intentional discrimination against Asian Americans,” Mortara said. He also contended that Harvard knew of the problem since “red warning flags” were raised internally in 2013 but the university did nothing about it.
Harvard’s lead attorney, William F. Lee, denied that the university discriminates against Asian Americans or any other demographic group. Harvard’s doors, he said, “are open to students of all backgrounds and means.”
Lee walked through what he described as a painstaking review process in which race is one of many factors. “Harvard never considers an applicant’s race to be a negative,” Lee said. If race does play a role with a given student, he said, it is “always considered in a positive light.”
U.S. District Judge Allison D. Burroughs is presiding over the trial and expects to issue a verdict. There will be no jury. Both sides assume Burroughs will not have the final word because any verdict faces a near-certain appeal. Eventually, the case could reach the Supreme Court.
Expected to last at least three weeks, the trial puts a new twist on an old controversy. In several previous major cases, white applicants sued to challenge affirmative action in admissions. This time Asian Americans are at the center of the fight.
The trial will also put an array of Harvard officials on the witness stand in a spectacle that promises to shine a rare public light on details of admissions that ordinarily are a mystery to college-bound students and parents around the world. Every year Harvard and other selective schools promise a “holistic review” of all who apply, looking at grades, test scores, transcripts, recommendations, family background and other information, including race and ethnicity.
But most applicants don’t quite know what that means.
Some details emerging from the trial could cast Harvard in a positive light, explaining the many layers of review it gives to more than 40,000 files a year before making nearly 2,000 admission offers.
Some could be unflattering. The pretrial phase of the suit exposed that Harvard received internal warnings about potential bias against Asian Americans in recent years but apparently did little to follow up.
Addressing that issue, Lee said Monday an internal report on potential bias in 2013 was incomplete and preliminary and that senior officials who reviewed it saw “no reason for alarm.”
The suit, filed in 2014, has also revealed highly sensitive summaries of the substantial edge that Harvard gives to applicants who are recruited athletes, children of alumni and others deemed worthy of special attention. More is expected to be disclosed during the trial through evidence collected from Harvard officials in pretrial depositions that so far has been kept under seal.
Barring a surprise change in strategy, the plaintiff’s attorneys do not plan to call as witnesses any Asian Americans who allege that they were victimized by Harvard. Some alleged victims gave pretrial depositions under oath, but their identities remain anonymous.
However, some Harvard students and graduates who are Asian American plan to testify in support of the university’s admission policy and diversity goals. Civil rights advocates also plan to call African American and Latino students to testify about the importance of racial awareness on campus.
“Just as race continues to matter, so does racial diversity,” said Genevieve Bonadies Torres of the Lawyers' Committee for Civil Rights Under the Law
The plaintiff alleges that Harvard engineers every year a precise racial balance of admission offers that gives an unfair edge to less-qualified applicants from other groups. The plaintiff also charges that Harvard gives too much weight to race and fails to fully comply with a Supreme Court mandate to consider race-neutral alternatives for assembling a diverse class.
Harvard denies all the allegations and says it considers race only in a limited way, following court precedents dating to the 1970s that have cited the university’s methods with approval. The university says that race-conscious admissions is essential to ensuring that students are exposed to a range of viewpoints.
William R. Fitzsimmons, Harvard’s dean of admissions since 1986, was the first witness. Plaintiff’s attorney John M. Hughes asked him to explain an internal document that showed the university treats white and Asian American high school students differently when it sends recruiting letters. Asian Americans, the document showed, often were required to have higher standardized test scores on average than peers from other racial groups to qualify for a letter encouraging promising students to think about Harvard.
“That’s race discrimination, plain and simple,” Hughes said.
Not so, Fitzsimmons replied. “We simply are trying to reach out to people from all over the nation.”
The lawsuit was filed in November 2014 and has been spearheaded by Edward Blum, a well-known opponent of racial preferences in college admissions, who is white. Prominent schools from the Ivy League and elsewhere have filed briefs in support of Harvard, a sign of the gravity of the case for higher education. The Trump administration has weighed in on the side of the plaintiff.
Separately, the Justice Department has opened civil rights investigations into complaints that Harvard and Yale discriminate against Asian Americans. Both universities deny those allegations.
The last time the high court ruled on affirmative action in admissions, in 2016, it narrowly upheld a race-conscious policy at the University of Texas. But the pivotal vote in that ruling, Justice Anthony M. Kennedy, has since retired. The recent arrival of Kennedy’s replacement, Justice Brett M. Kavanaugh, strengthened the court’s conservative majority and could signal a new approach if it revisits the issue.