Harvard affirmative action trial arguments come to a close

"There is a statistically significant Asian American penalty," John Hughes, a lawyer for the challengers, asserted.

Harvard's attorneys countered that the evidence failed to demonstrate any Asian American bias and that the lawsuit was more directly aimed at ending decades-old efforts toward racial diversity that enhances the educational experience.

"The goal of [the challengers] is to eliminate all consideration of race in admissions," asserted William Lee, on behalf of Harvard, in the case brought by Students for Fair Admissions.

Lee observed in his closing remarks that the architect of the SFFA group had previously challenged racial affirmative with white plaintiffs and now recruited Asian Americans. Lee also noted that the group had put no Asian American students on the stand over the past three weeks to voice their grievances and back up the group's bias claims.

The final day of the case that both sides believe is headed to the Supreme Court offered more dueling data analyses regarding Asian Americans and competing visions of the use of race for diversity.

Ultimately at stake is a 1978 Supreme Court ruling that first allowed universities to consider race as one of many factors in admissions but forbade quotas. The case could change who gets into Harvard and highly competitive universities across the country.

Students for Fair Admissions, which filed the case in November 2014, asserts that Harvard intentionally discriminates against Asian-Americans as it engages in unlawful racial balancing that awards preferences to blacks and Latinos.

Harvard denies the claim, defends the fairness of a process that considers a range of student characteristics, and contends that if it was forced to abide by racially neutral criteria, the number of black and Hispanic students on campus would plummet.

A ruling in this initial district court phase is still months away. US District Court Judge Allison Burroughs said she would hold a post-trial briefing with the parties early in 2019 to address any remaining issues, before eventually ruling.

Students for Fair Admissions, founded by conservative advocate Edward Blum, has sued Harvard under Title VI of the 1964 Civil Rights Act, which bars intentional race discrimination at colleges and universities that receive federal funds. Blum, based in Maine, has brought a series of lawsuits against racial policies up to the Supreme Court. Abigail Fisher, a white student who sued the University of Texas at Austin over affirmative action, lost her long-running case in 2016. the Texas program was upheld by a single vote, that of Anthony Kennedy, who resigned this summer and was succeeded by the more conservative Brett Kavanaugh.

Three years earlier, however, Blum achieved a major victory in the case of Shelby County v. Holder, as the Supreme Court curtailed the reach of the 1965 Voting Rights Act. Blum, a former stockbroker who is not a lawyer, recruited the Alabama county that successfully challenged a VRA provision that had required states with a history of discrimination to clear any proposed changes in election rules with the US Department of Justice before enactment.

Harvard by the numbers

Harvard receives about 40,000 annual applications and ends up with a final freshman class of about 1,600. The percentage of Asian American students has been rising through the years and the most recently admitted class of 2022 is 23% Asian American. African Americans constitute about 15% and Latinos, 12 percent. A category of mainly white students account for 50%

Students for Fair Admissions has argued that those percentages have been relatively constant because of "racial balancing," and that Asian American applicants are essentially capped below the acceptance percentage they merit.

The group says Harvard tamps down successful Asian American applicants mainly through manipulation of crucial "personal" rankings, which assess a range of traits from leadership to likeability and which can be determinative among so many high-achieving applicants. (In the group that became the current Class of 2019, for example, 8,000 of the US applicants had perfect GPAs, and more than 5,000 had a perfect math or verbal SAT score.)

In his final arguments Friday, Hughes argued that Harvard uses the important "personal" rating to deflate Asian American admission chances, while it inflates the chances for blacks and Hispanics. He displayed a chart showing racial categories of students who had earned the highest academic scores. The top Asian Americans consistently received the lowest "personal" ratings, while the top African American applicants were awarded the highest "personal" ratings.

Harvard rejected the evidence, saying it rested on a false assumption that academic superiority aligns with a personal character assessment. The "personal rating," insisted Seth Waxman, a lawyer for Harvard who shared the closing arguments, "has almost no correlation" to the academic index.

More broadly, Waxman faulted the challengers' data models, which showed Asian American applicants at a disadvantage among other racial groups, because they excluded these "personal" ratings, as well as a whole class of traditionally favored applicants: athletes, children of alumni, faculty and staff or on a special dean's list.

The challengers also removed from their data analyses a student's parents' occupation and the student's intended career -- both of which Harvard said mattered in trying to bring in a range of backgrounds and experiences.

Lawyer Adam Mortara, who closed out the session on behalf of Students for Fair Admissions, rebuffed Harvard's efforts to discount the group. He said it had 20,000 members and was determined to try to end admissions practices that arise from racial stereotyping.

"Some day this [case] will be written about in the history books, and those books will say there was Asian American discrimination at Harvard. Of that, I am confident. Those books might say that Harvard let the wolf of racial bias in through the front door," Mortara said.

"I hope those books will say this court slammed the door shut."

Nationwide stakes

In Burroughs' own brief remarks as the trial ended Friday afternoon, she said she felt the weight of the case, for students and universities nationwide.

Appointed to the bench in late 2014 by President Barack Obama, Burroughs began presiding over the dispute soon after it was filed. Throughout the trial, she asked relatively few questions, mainly testing the presumptions behind the data analyses.

On Monday, she heard from eight Harvard students and alumni who spoke about their experiences as racial and ethnic minorities at the Cambridge campus. From Native American, Vietnamese and other diverse backgrounds, they recounted feeling marginalized and stereotyped in their youth and that they came to feel appreciated for their differences at Harvard.

Presented by civil rights organizations that had entered the case as amici, "friends of the court," that testimony brought a human dimension to a trial filled with data crunching and contrasting views of what factors most illuminated Harvard's screening practices.

"No criticism intended," Burroughs said at one point to Harvard's leading data witness as he was criticizing the challengers' interpretation, "but I assume that you're both presenting the data in the way that's most efficacious for your models."

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