In the first day of a trial focused on Harvard’s admissions process, lawyers challenging the Ivy League campus laid out multiple ways that they allege it discriminates against Asian Americans, beginning with its recruitment practices.
At the core of the case being heard in a federal courthouse in Boston are claims from a group known as Students for Fair Admissions that Harvard engages in unlawful “racial balancing” that benefits blacks and Hispanics and hurts Asian American applicants.
Harvard denies the claim and says it assesses each applicant on an individual basis, sometimes using race as a “plus” factor, to achieve the best mix among students for its educational goals.
The case, which people on both sides believe is destined for the US Supreme Court, was begun by conservative advocates who hope to end racial affirmative action. At stake is a 1978 landmark which first endorsed the use of applicants’ race as one criteria in screening, to ensure campus diversity.
First on the stand was Dean of Admissions William Fitzsimmons, whose office of 40 people oversees the annual screening of an estimated 40,000 applications to determine which high schoolers receive one of the 2,000 acceptance letters Harvard sends out.
Under questioning from SFFA lawyer John Hughes, Fitzsimmons detailed some of the recruitment efforts that begin the selection process. Harvard mails recruitment letters to black and Hispanic high schoolers with middle-range SAT scores, Fitzsimmons acknowledged, yet only sends such letters to Asian Americans if they have scored more than 200 points higher.
According to charts Hughes displayed, Harvard sends such recruiting letters to black, Hispanic, and Native American students with top grades who hit at least 1100 on the combined math and verbal SAT score (the top score is 1600). To receive such letters under similar circumstances, Asian American men must have a combined score of 1380, and Asian American women, a combined score of 1350.
Similarly, Fitzsimmons said that white students in states where Harvard attendance is sparse, such as Montana and Nevada, would receive a recruitment letter if they scored at least 1310 in the combined SAT math and verbal tests. But Asian Americans living in such states would still not receive such recruiting letters unless they had a combined score of 1380 (the Harvard benchmark to recruit Asian American men) or 1350 (for Asian American women).
“That’s race discrimination, plain and simple,” Hughes told Fitzsimmons.
“It is not,” Fitzsimmons responded. The admissions dean said the emphasis on certain minority students across the country and white students in America’s less populated regions represented efforts “to break the cycle” and persuade students who normally would not think about applying to Harvard to consider the Cambridge campus.
More than 25 witnesses are expected to be called over the next three weeks in the case being tried before US District Court Judge Allison Burroughs.
Basis of the case
The clearest picture of the dueling sides emerged early in the day as both sides presented their opening statements.
The case, filed in November 2014, was engineered by conservative activist Edward Blum, who has brought a series of lawsuits against racial policies – from university affirmative action to voting rights – all the way up to the Supreme Court. The Harvard lawsuit is based on Title VI of the 1964 Civil Rights Act, which bars discrimination at private institutions that receive federal funds.
Blum, who is not a lawyer, often recruits high caliber conservative legal talent. Both Hughes and Adam Mortara, who presented the SFFA opening arguments, are former law clerks to Justice Clarence Thomas.
Mortara contended Harvard manipulates students’ “personal” ratings to the disadvantage of Asian Americans, diminishing their chances to win a place. Those ratings, which he said reflect assessments in such traits as likability, sensitivity and grit, are weighed along with ratings in other categories such as academics and extracurricular activities.
Mortara said that while Asian American applicants received higher ratings than other racial groups in academics and extracurricular activities, their applications are dragged down by comparatively low “personal” ratings determined by vague and subjective criteria that benefit other applicants, particularly African American and Hispanic applicants.
Asian Americans “do shockingly … poorly,” Mortara said, compared to African Americans. “Race has to be influencing that.”
Harvard attorney William Lee asserted that the school does not discriminate against Asian Americans in any way. He stressed the school’s overall goal of a “diverse, inclusive” community and the multitude of factors that go into the assessment of who should be admitted.
Lee said Students for Fair Admissions had misconstrued data, and that race was used only to a student’s advantage in certain circumstances, and never to his or her disadvantage. An applicant’s race, standing alone, would never the reason for admission, Lee said, with Harvard’s “whole person review” designed to ensure that no one characteristic was overriding.
Specifically addressing the “personal” rating which can be significant, Lee said it includes such characteristics as leadership and compassion. Disputing the SFFA characterization of an internal racial-balancing to allow in set percentages of various racial groups, Lee said the personal ratings, as well as others, are based on information from people outside the Harvard admissions office, including teachers and guidance counselors.
He stressed that all ratings could be preliminary and intended to help admissions officers to “triage” among hundreds of applications.
“Harvard cannot achieve its educational goals without considering race,” Lee added, emphasizing the value of diversity to the educational experience.
Students for Fair Admissions v. Harvard is likely to be one of the most consequential race cases in decades, with affirmative action policies across the country at stake.
Since Blum began the case four years ago, the Supreme Court has only grown more conservative, most notably with the recent addition of Justice Brett Kavanaugh.
The replacement of conservative Kavanaugh, for the more moderate retired Justice Anthony Kennedy, increases the chances that the 1978 affirmative action landmark, Regents of the University of California v. Bakke, would be overruled.
Kennedy cast the decisive vote the last time the Supreme Court took up a case against racial affirmative action on campus. In the 2016 case of Fisher v. University of Texas at Austin, Kennedy wrote the argument rejecting arguments on behalf of Abigail Fisher, who also was recruited by Blum, and endorsing the racial affirmative action intended to diversity the campus of the flagship school based in Austin.