At One Final Hearing, Harvard and Students for Fair Admissions Squared Off. Here’s What Happened.

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You didn’t think that the nation’s biggest college-admissions case was all wrapped up, did you?

At a final hearing in federal court on Wednesday, both sides in a closely watched legal battle over race-conscious admissions policies made their closing arguments — for the second time.

A lawyer for Students for Fair Admissions, a nonprofit group that opposes affirmative action, once again alleged that Harvard University discriminates against Asian-American applicants. Lawyers for Harvard once again rejected those allegations.

For three hours, a feeling of déjà vu washed over Courtroom 17. After all, the two parties said essentially the same things at the end of an exhausting, three-week trial here last fall. But in an unusual turn, Judge Allison D. Burroughs of the Federal District Court permitted another round of closing arguments, three months after the trial appeared to have ended. Though such a move is rare, it’s been known to happen in especially complex and important cases.

Harvard on Trial

Detailed background on the lawsuit over the university’s race-conscious admissions policy, the case’s implications for selective colleges, and coverage of the trial as it unfolded, in a federal court in Boston.

• Harvard Doesn’t Discriminate Against Asian American Applicants, U.S. Appeals Court Rules
• 3 Takeaways From the Appeal of the Harvard Admissions Lawsuit
• A Judge Advised Harvard to Give Its Admissions Officers Training to Stop Bias. Will That Help?

The case, which is widely expected to reach the U.S. Supreme Court, is one of two pending legal challenges to race-conscious admissions policies at big-name institutions. Students for Fair Admissions, which is also suing the University of North Carolina at Chapel Hill, has positioned itself for a sustained fight. Edward J. Blum, the conservative activist who leads the organization, recently told The Harvard Crimson that he hoped the high court would eventually overturn its previous rulings that allow colleges to consider applicants’ race and ethnicity.

After entering the packed courtroom on Wednesday, Judge Burroughs looked out at the rows of well-dressed lawyers. “Welcome back,” she said.

In the second row, Blum sat in his usual spot. A few feet to his left, Lawrence S. Bacow, Harvard’s president, squeezed in between William R. Fitzsimmons, the dean of admissions, and Marlyn E. McGrath, the admissions director. More than a dozen Harvard students, many wearing blue “#DefendDiversity” T-shirts, stood along the back wall or squatted on the carpet.

The case will hinge on questions about discrimination and the role that race plays in Harvard’s evaluations of applicants. Judge Burroughs must decide what to make of the fact that Asian-American applicants received lower personal ratings (one of four ratings Harvard uses) than did applicants of other races in the university’s admissions process.

“The most important question in the case is, Why is this happening?” said Adam K. Mortara, a lawyer for Students for Fair Admissions.

He proposed two possible answers. Either Asian-American applicants “actually deserve” lower ratings, he said, or Harvard’s admissions officers “may quite well have fallen prey to racial stereotyping.” In short, he suggested that admissions officers had expressed an unconscious bias: “It doesn’t make them evil, it makes them human.” (In a recent court filing, Harvard’s lawyers said that the plaintiff had failed to provide any evidence that admissions officers “bore unconscious bias.”)

Mortara contended that Harvard had not explained why black and Hispanic applicants tended to get higher personal ratings than did Asian-American applicants. He also questioned why Harvard had recently revamped its written guidelines to emphasize that admissions officers should not consider an applicant’s race when assigning personal ratings. In one of several references to the infamous equation in George Orwell’s 1984, Mortara said, “It’s 2+2=5. They’re saying, ‘Trust us, believe us.’”

As Mortara wrapped up his remarks, Judge Burroughs rested her chin on her fists. She asked him several specific questions. One was why the plaintiff had presented no witnesses who claimed that they had been unfairly denied admission to Harvard.

There was no requirement to do so, Mortara said: “Statistics alone can prove our case.”

‘Truly Remarkable’

Moments later, William F. Lee, a lawyer for Harvard, also noted the absence of testimony from unsuccessful applicants. “The plaintiff’s failure to produce a single individual who claims to have suffered discrimination,” he said, “is truly remarkable.”

Lee and Seth P. Waxman, another lawyer for Harvard, reiterated their arguments from last fall. They said that diversity is essential to the university’s mission. That admissions officers consider race as one factor among many. That the racial composition of the freshman class varies from year to year. That there are no viable race-neutral alternatives to its admissions process. And that the university’s admissions officers do not discriminate against any applicant.

“Admissions officers have testified over and over again that they do not consider race when assigning the personal rating,” Waxman said. “Is there enough statistical evidence that race per se is considered in the personal rating for your Honor to conclude that all those admissions officers are lying or mistaken?”

For much of the afternoon, the court got a heavy dose of the dueling statistical analyses that figured prominently in the earlier testimony. Which economist’s methods and conclusions were sound? Which variables had been overlooked? Be glad that you don’t have to decide.

There was much back and forth about which legal standard should apply to the case. Harvard’s lawyers argued that the plaintiff bears the burden of proving intentional discrimination — and must show evidence of “racial animus.” But the plaintiff’s lawyers contended that Harvard bears the burden of disproving the claim that it intentionally discriminates; they asserted that statistical evidence is sufficient to prove a pattern of discrimination.

Mortara once again contended that Fitzsimmons had failed to act on an internal analysis suggesting that there was what the lawyer described as “an Asian penalty” in the admissions process. Waxman dismissed that notion, saying that it was a mischaracterization of what the analysis actually showed: “The reason Dean Fitzsimmons didn’t sound the alarm in response to the documents … is that he didn’t understand them to show smoke, let alone fire.”

Just how big a role does race really play in Harvard’s admissions process? Both sides offered different explanations. Students for Fair Admissions has alleged that it’s much more than a “plus factor.” Harvard has vehemently denied that claim.

In his remarks, Waxman cited Fisher v. University of Texas, in which the Supreme Court recognized that in some instances race can help determine whether a given applicant is accepted or rejected. “For highly competitive applicants, many factors may have an effect,” he said. “For those on the bubble, any one additional factor can push them over the top. For those people, race can and does have a meaningful effect.”

In a brief closing statement, Mortara returned to the question of why Students for Fair Admissions hadn’t offered any Harvard applicants as witnesses. He cited concerns about the scrutiny such a witness would have received after testifying: “Somebody would have done something horrible to one of our students.”

Mortara returned to the question he’d posed in his opening remarks: Why had Asian-American applicants received lower personal ratings than did applicants in other racial and ethnic groups?

“They have never bothered to tell you why it is,” he said.

Around 4:30, Judge Burroughs brought the hearing to a close. Throughout the trial, she seemed to feel the weight of the case that she alone would decide. “The issues raised in this case are incredibly important, to the parties in this case and also to the world,” she said last fall. “I hope our final work product is worthy of the effort put into it.”

That final product could be a long time coming. Two legal experts familiar with the case said they expect that Judge Burroughs won’t deliver her ruling for months. Assuming that the losing side appeals that decision, many of those who were present on Wednesday will find themselves, months or years later, gathered in another courtroom.

Eric Hoover writes about the challenges of getting to, and through, college. Follow him on Twitter @erichoov, or email him, at eric.hoover@chronicle.com.