A federal appeals court in Boston heard arguments on Wednesday in a lawsuit that has challenged Harvard University’s consideration of race in admissions. It was the latest phase in a case that could have wide implications for affirmative action at selective colleges because it is expected to go to the U.S. Supreme Court.
Last year a federal district judge in Boston ruled for Harvard, saying the university’s consideration of race in its admissions process was constitutional.
“The use of race benefits certain racial and ethnic groups that would otherwise be underrepresented at Harvard and is therefore neither an illegitimate use of race or reflective of racial prejudice,” the judge, Allison D. Burroughs, wrote in her decision.
A recap: Harvard was accused by Students for Fair Admissions, or SFFA, of discriminating against Asian Americans in its admissions process. The advocacy group alleged that Harvard had sought to “balance” its admitted class by race and fulfill racial quotas — both illegal practices — by consistently ranking Asian Americans lower on a metric of students’ personalities.
But Burroughs ruled that SFFA had not proved that Harvard admissions officers held any racial animus, nor did the group present an Asian American applicant who should have or would have been admitted to Harvard but for an improperly low personality score. SFFA appealed that ruling and made its case on Wednesday before a three-judge panel of the U.S. Court of Appeals for the First Circuit. Here are some highlights of the day’s proceedings, which took place entirely online due to the coronavirus pandemic.
The two sides disagreed on what changes in Harvard’s admissions process and recent demographic shifts mean.
Around the time of the 2018 trial, Harvard updated its admissions procedures to include explicit instructions on how to use race when evaluating students’ applications. Harvard also announced last year that Asian Americans made up 25.4 percent of its Class of 2023, a proportion that Inside Higher Ed reported was the highest ever.
William S. Consovoy, the lawyer representing SFFA, suggested that those changes meant Harvard was correcting an error. He said that if this had been a different type of case — one, for example, in which “women were denied promotion not because of a lack of objective qualifications but because they didn’t fare as well on the subjective personal score” — the lawsuit wouldn’t have even gone to trial because it would have been considered clearly unfair.
Seth P. Waxman, the lawyer representing Harvard, rejected the idea that an increase in the percentage of Asian American students reflected some kind of course correction.
“With all due respect, that is like the rooster taking credit for the dawn,” he said.
He argued that the racial makeup of classes changes from year to year, and emphasized that admissions officers don’t practice racial balancing.
“Friends of the court” clarified the stakes of the case.
Amici, or “friends of the court,” also weighed in on Wednesday. The Justice Department, which has intervened in the case to support SFFA, argued that Harvard had violated civil-rights laws. Eric S. Dreiband, an assistant attorney general, told the judges that unlike the University of Texas at Austin, whose race-conscious admissions process was upheld by the Supreme Court, Harvard’s use of race in admissions is “expansive” and “pervasive.” The University of Texas, which was also unsuccessfully sued by SFFA, considered race in reviewing only a quarter of its applicants, whereas Harvard did it throughout the process.
One of the appellate judges, Sandra L. Lynch, seemed skeptical. “Are you arguing for some sort of per se rule?” she asked. “You can consider race twice in the process?”
Lawyers for Harvard students and alumni tried to explain to the judges what was at stake. Jin Hee Lee, a lawyer with the NAACP, said that the educational system in the United States “deprives qualified and hard-working Black students from accessing important educational opportunities,” and that under SFFA’s preferred, race-neutral admissions model, Black students would suffer the most.
The judges had more questions for the SFFA and the Justice Department than for Harvard.
The judges were quicker to interrupt the lawyers for SFFA and the Justice Department, and had more questions for them, than they did for Harvard’s lawyer. That could be a sign that they view Harvard’s argument as the stronger one. Two of the judges — Lynch, who was nominated by Bill Clinton, and Juan R. Torruella, who was nominated by Ronald Reagan — pressed Consovoy on whether there was evidence of racial profiling and intentional discrimination by Harvard admissions officers. (The third judge was Jeffrey R. Howard, who was nominated by George W. Bush.)
The judges told the lawyers that they would reach a decision as soon as possible, but did not indicate exactly when that would be.
