Affirmative action on trial in Harvard case
A trial widely perceived to be a referendum on affirmative action will begin Monday in Boston, taking into a courtroom decades of fierce disputes over whether Harvard University and other elite institutions use racial balancing to shape their classes.
The case accuses Harvard of setting a quota on Asian-American students accepted to the university and holding them to a higher standard than applicants of other races. It flips the strategy used in past challenges to race-conscious admissions: Instead of arguing that the school disadvantages whites, the plaintiffs say that Harvard is admitting minority groups and white students over another minority, Asian-Americans.
Asian-Americans are divided on the case, with some saying they are being unfairly used as a wedge in a brazen attempt to abolish affirmative action. But it is not yet clear whether the case will make new law — perhaps banning the consideration of race in college admissions — or will narrowly affect only Harvard. Legal experts say at the very least, the case will expose the sometimes arcane admissions practices of one of the most selective institutions in the world.
At most, it could make its way to a newly more conservative Supreme Court and change the face of college admissions.
“I definitely think that this will affect the fate of affirmative action and therefore racial diversity in universities across the country,” said Nicole Gon Ochi, a lawyer for Asian Americans Advancing Justice in Los Angeles. “It’s about much more than a few elite universities like Harvard.”
The case is particularly resonant, experts say, because Harvard’s “holistic” admissions policy, which considers race as one factor among many, has been held up as a model by the Supreme Court since a landmark affirmative-action case in 1978, and is effectively the law of the land. Harvard says that it does not discriminate, but considers each student individually to build a class of diverse backgrounds, races, talents and ideas.
The trial comes as President Donald Trump’s administration continues to tip its hand toward the plaintiffs. The Justice Department has filed a statement of interest in the case. It has opened its own inquiries into complaints of discrimination against Asian-Americans, at Harvard and at Yale. And in July, the Education and Justice departments withdrew guidelines from President Barack Obama’s administration that encouraged the consideration of race in college admissions.
The rest of the Ivy League has closed ranks behind Harvard, filing a joint amicus brief, and universities across the nation are watching intently for a ruling with wide-ranging impacts.
The lawsuit says that Harvard holds the proportions of each race in its classes roughly constant and manipulates a vague “personal” admissions rating to downgrade applications from Asian-Americans. By doing this, the suit says, Harvard is violating federal civil-rights law, which prohibits discrimination by universities that receive federal funds.
Harvard says there is no evidence that the 40-member admissions committee has engaged in any orchestrated scheme to limit the admission of Asian-Americans. But it says that eliminating the consideration of race would cut the number of black applicants, Hispanics and other underrepresented minorities by nearly half.
Past Supreme Court decisions on affirmative action limited the use of race in college admissions without banning it outright. The court has said that an applicant’s race can be used as a “plus factor” or “a factor of a factor of a factor,” terms that are purposefully ambiguous.
Legal experts say the Harvard case could be a fact-based trial, specific to one university. But if it is appealed, the Supreme Court could have a chance to revisit the law on affirmative action. That is the game plan of the plaintiffs, Students for Fair Admissions, a group formed by a conservative activist against affirmative action, Edward Blum. Blum has recruited for the group nearly two-dozen Asian-American students who were rejected by Harvard.
Ilya Shapiro, a senior fellow at the libertarian Cato Institute, said affirmative action could be vulnerable if the lawsuit goes to the Supreme Court and newly appointed Justice Brett Kavanaugh follows the lead of the chief justice, John Roberts.
“On this issue, John Roberts has written that the only way to stop discriminating on race is to stop discriminating on race,” Shapiro said. “So he has made up his mind that racial preferences are improper in any way.”
Harvard’s newly installed president, Lawrence Bacow, issued an email earlier this month saying he was confident the university would prevail, and pleaded for civility and the long view.
“Reasonable people may have different views,” Bacow said. “I would hope all of us recognize, however, that we are members of one community — and will continue to be so long after this trial is in the rearview mirror.”