Affirmative action lawsuit against Harvard in judge's hands

In deciding the case, a federal judge will have to weigh complex and competing statistical evidence presented by both sides.
Image: People walk past Harvard University t-shirts for sale in Harvard Square in Cambridge
People walk past Harvard University t-shirts for sale in Harvard Square in Cambridge, Massachusetts on Nov. 16, 2012.Jessica Rinaldi / Reuters file

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By Associated Press

BOSTON — A federal judge will now decide whether Harvard University intentionally discriminates against Asian-American applicants, an allegation made in a 2014 lawsuit that was debated in a final round of arguments Wednesday.

Lawyers for both sides clashed at Boston's federal courthouse, largely recapping cases they made during a trial that ended in November. The case will be decided by U.S. District Judge Allison D. Burroughs, although any ruling is expected to be appealed.

The case carries implications for other U.S. schools that consider race in admissions decisions as a way to bring a diverse mix of students to campus. It has added fuel to a national debate about whether and how race should influence admissions.

The lawsuit argues that Harvard's admissions office holds Asian-Americans to a higher standard and uses a subjective "personal rating" to limit their admission to the elite Ivy League school.

Students for Fair Admissions, the group behind the lawsuit, says students of Asian descent have the strongest academic records yet receive the lowest scores on the personal rating, which scores applicants on traits including "courage" and "likability."

Harvard says it uses race only as one of many factors to choose from more than 40,000 applicants a year. It says race can only help, never hurt, an applicant's chances of getting in.

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On Wednesday, lawyers for Students for Fair Admissions argued that Harvard's admissions officers aren't "evil" and may simply have "fallen prey to racial stereotyping," but the group said their treatment of Asian-Americans still amounts to intentional discrimination.

Adam Mortara, a lawyer representing the group, said Harvard's own admissions records show that students of Asian descent are treated differently from how students of other races are, yet the school has failed to provide any explanation.

"Harvard has yet to come up with any race-neutral explanation for the Asian penalty in the personal rating," he said. "No Harvard admission officer was willing to come here and testify as to why this is happening."

Harvard's lawyers countered that the group failed to provide any direct evidence of discrimination. They noted that no students came forward during the trial to say they were wrongly rejected from the school.

"It's not just that SFFA has failed to provide a smoking gun, they failed to find evidence of a single victim of discrimination," said Seth Waxman, a lawyer for Harvard.

Students for Fair Admissions has previously said its 20,000 members include some Asian-Americans who were unfairly denied admission from Harvard, but none were called to testify at trial.

The Virginia-based group is led by Edward Blum, a legal strategist who unsuccessfully fought against the use of race in admissions at the University of Texas, and who is now leading a similar lawsuit against the University of North Carolina at Chapel Hill.

In deciding the case, Burroughs will have to weigh complex and competing statistical evidence presented by both sides.

Students for Fair Admissions built its case around a Duke University professor's analysis of Harvard admissions records. It concluded that the university's personal rating works against Asian-Americans while favoring black and Hispanic students.

Harvard provided a dueling analysis from a University of California, Berkeley economist who studied the same admissions records but found no evidence of discrimination.

Burroughs, the judge, is not expected to make a decision immediately. Speaking to one of Harvard's lawyers during the hearing Wednesday, she suggested that both sides have weaknesses in their arguments.

"They have a no-victim problem," Burroughs said, referring to Students for Fair Admissions, "but you have a personal rating problem."

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