As an Asian American alumnus of Harvard College, I’ve been following Students for Fair Admissions v. Harvard, the lawsuit alleging that Harvard discriminates against Asian Americans in admissions, with great interest. So at last week’s Federalist Society National Lawyers Convention, I made sure to attend a panel called “Discrimination Against Minorities” — aka “Asian Americans v. Harvard.” (You can access a video recording of the panel on the Federalist Society website or on YouTube.)
The panel opened with an overview of the case by Patrick Strawbridge of Consovoy McCarthy Park, the elite litigation boutique serving as lead counsel to the plaintiff, Students for Fair Admissions (SFFA). The firm filed its case against Harvard four years ago this month, along with a similar case against the University of North Carolina-Chapel Hill.
The lawsuit against Harvard alleges that the university violates Title VI by discriminating against Asian Americans in admissions. Unlike past high-profile cases challenging racial preferences in admissions, the Harvard lawsuit features an institutional plaintiff, the 20,000-plus-member Students for Fair Admissions, as opposed to an individual (e.g., Abigail Fisher of Fisher v. University of Texas). Proceeding through an association is a long-established way to pursue civil rights litigation, and it avoids some of the difficulties involving cases by individual applicants who have to demonstrate damages. In this case, SFFA seeks a declaratory judgment and injunctive relief, not money damages.
Interestingly enough, Harvard did not move to dismiss the case; instead, it answered the complaint. Strawbridge speculated that perhaps Harvard, ably represented by a team from WilmerHale led by Seth Waxman and Bill Lee (an Asian American alumnus of Harvard himself), wanted to make the most of its advantage in resources by going straight to trial. But this instead caused Consovoy McCarthy to call in the cavalry by bringing aboard another great litigation boutique, Bartlit Beck, ahead of trial.
The bench trial in the case began on October 15 before Judge Allison D. Burroughs (D. Mass.). Strawbridge had nothing but praise for Judge Burroughs, describing her as “exceedingly fair” in her pretrial rulings and “very diligent” in running the trial.
The presentation of the evidence lasted for three weeks, featuring more than a dozen live witnesses and two expert witnesses, with closing arguments on November 2. In the coming weeks, the parties will exchange proposed findings of fact and conclusions of law, followed by a second round of closing arguments early next year. Strawbridge expects a ruling from Judge Burroughs sometime next summer.
Strawbridge highlighted some of the key pieces of evidence supporting SFFA’s case. Some of the strongest evidence came from Harvard’s own files, including internal reports generated in 2013 by Harvard’s Office of Institutional Research (OIR). Here’s a summary, via Slate:
The most consistent and striking findings from the three reports was that white applicants have a disproportionate advantage over Asian Americans, and that preferences for legacies and athletes account for much of that racial inequity. The plaintiffs allege, and Harvard partly admits, that [admissions dean William] Fitzsimmons chose not to look further into the matter when presented with the findings. In fact, it looks as if he and other university officials buried at least one of the studies in part because of what it revealed about Asian-American applicants….
If academic ratings were the only factor in admissions, Asian Americans would make up 43 percent of the incoming class. Once you consider legacy and athlete preferences, however, that proportion drops to 31 percent. Also taking into account extracurricular and personal ratings further drops Asian representation to 26 percent. Adding demographic factors to the equation then depresses Asian admissions to 18 percent. (The actual admissions percentage for Asian Americans [in 2013] was 19 percent.)
According to Strawbridge, Asian American applicants actually perform well in terms of extracurricular ratings. What’s driving their lower admission rate is the “personal” rating — a subjective factor that admissions officers receive no guidance about, and a possible pretext for anti-Asian discrimination. Per Slate:
The only area where Asian Americans significantly fell behind white applicants was in the personal rating, which in part judges the essays, teacher recommendations, and qualities such as courage and kindness. The personal rating is not supposed to take race into account, but OIR’s studies demonstrate that the scores tend to be racialized.
As Strawbridge explained, when it came to the “personal” rating, Asian Americans fared worse than whites, African Americans, and Hispanics. At trial, Harvard did not dispute this fact, but offered possible explanations — for example, it suggested that Asian applicants might be less multidimensional than white applicants (i.e., we Asians really are just a bunch of boring nerds, with nothing going for us beyond test scores and GPAs).
Strawbridge cited other facts that support the complaint’s allegations of discrimination against Asian Americans. For example, consider Harvard’s apparent effort at “racial balancing.” The percentage of Asian American students at Harvard has remained remarkably (and suspiciously) stable over the years, despite a dramatic increase in the Asian American population in the United States (up by 72 percent from 2000 to 2015), as well as changes in Asian American representation in the Harvard applicant pool.
Another telling fact: when Harvard tries to recruit students from what it calls “sparse country” (states that send relatively few students to Harvard), it uses different test-score cutoffs for whites versus Asians. A white high school junior from “sparse country” who earns a 1310 on the PSAT will receive an invitation to apply from Harvard. For an Asian woman to receive this invitation, she needs a 1350, and for an Asian man, he needs a 1380. Harvard’s longtime admissions dean, William Fitzsimmons, had no good explanation for this at trial.
Speaking after Strawbridge, Althea Nagai, a research fellow at the Center for Equal Opportunity, provided additional data supporting the allegations of discrimination. She noted that the percentage of Asian Americans at Harvard has hovered around 20 percent for decades, even though the number of Asian Americans applying to and attending college has skyrocketed during this period.
At similarly elite institutions that do not consider race in admissions, Asians make up a much higher percentage of the student population, according to Nagai. The top schools in the University of California system, such as UC Berkeley and UCLA, have classes that are about 40 percent Asian American. At Caltech, the undergraduate population is about 43 percent Asian. (And in case you’re thinking that Caltech is, as Nagai put it, “just a math nerd school,” you should know that its student body has a median verbal SAT score of 750.)
Nagai said that the research of the Center for Equal Opportunity, which compared Harvard admissions to admissions at schools like Caltech and MIT, clearly demonstrates that Harvard discriminates against Asians. She noted the rich irony in Harvard engaging in racial discrimination while being nationally known as a center for research into implicit bias.
Professor Andrew Koppelman of Northwestern Law, dutifully playing the role of what he described as “token liberal,” offered a less than full-throated defense of Harvard. In fact, Koppelman said that “if Harvard is discriminating against Asians, that’s nasty — and it should stop. Discrimination against racial minorities is what the law prohibits.”
But Koppelman did express concerns over what could happen if this lawsuit ends up toppling affirmative action. SFFA’s lawyers deny that this case is about ending affirmative action — as Adam Mortara of Bartlit Beck said in his opening argument, “the future of affirmative action is not on trial over the next three weeks” — but if this all ends by preventing Harvard (and its peer institutions) from considering race in admissions, affirmative action could be in jeopardy.
Koppelman expressed the fear that supporters of this lawsuit would abolish affirmative action and replace it with nothing at all. And if this litigation winds up ending affirmative action, it could actually promote tribalism and racial hostility, not reduce them.
So this raises the question of remedy. If Harvard illegally discriminates against Asian Americans in admissions, then what would a new, fairer admissions process look like?
Pushing back against Koppelman, Patrick Strawbridge argued that the plaintiffs are not seeking to replace Harvard’s current system with “nothing.” To the contrary, the evidence at trial explored alternatives to the status quo that would be race-neutral while still maintaining racial and ethnic diversity. These alternative systems could involve increasing preferences for low socioeconomic class and/or reducing or eliminating preferences for legacies (children of Harvard alumni), applicants whose admission could lead to large donations to Harvard, or athletes.
For example, Strawbridge said that if Harvard gave a preference for low socioeconomic class that was roughly half as strong as the preference given to recruited athletes, it could generate a hypothetical admitted class that would still feature strong African American and Latino representation — a class that would be 12 to 14 percent African American and 19 percent Latino, about the same as what Harvard had at the start of the Obama administration. This hypothetical class would be about 31 percent Asian American, up from around 20 percent today.
What are the arguments against increasing the focus on socioeconomic status while reducing the focus on race? One argument, according to Strawbridge, is that a more holistic and probing admissions process would be much more expensive.
This argument strikes me as not very persuasive. With an endowment of $39.2 billion, Harvard can afford a fair and just admissions process.
Disclosure: Because I spoke on a panel at this year’s Federalist Society Convention, I received free access to Convention events. I also speak regularly at other Federalist Society events, for which I receive travel-expense reimbursement and the Society’s standard honorarium (lower than my normal speaking fee).
David Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at email@example.com.