The Harvard is really about positive action

At this point, Mortara spent most of his time comparing American and white candidates. But suddenly, it seemed, his speech changed. Americans of Asian descent, he said, are "dramatically and shockingly" worse than African Americans and Latinos in personal assessments.

Then the speech returned to a traditional argument advanced by the SFFA: the university admission system discriminates against Americans of Asian origin because of the huge incentives offered predominantly white groups, such as recruited athletes, including about 80% of the candidates. are admitted, and called "legacies", students whose close relatives attended Harvard. But sandwiched between this argument, in a statistical analysis compiled by the SFFA expert witness, was another sign of how other minority groups, not just white students, are benefiting from Harvard admission policies. A chart compiled by the plaintiffs showed that students with certain characteristics were much more likely to enter Harvard than Americans of Asian descent: the top three personal assessments, African-Americans and alumni.

While the plaintiff's lawyers were wondering who is the beneficiary of Harvard's allegedly discriminatory admission policies, the university decided not to treat plaintiffs of Asian-American descent unfairly. "Harvard never sees a candidate's race as a negation, and if she considers race, she's always considered positive," Lee said. "Considering race in a positive way does not mean it's negative in another case."

But Students for Fair Admissions says that Americans of Asian descent suffer a negative penalty, which prevents qualified applicants from entering. The shift to a broader argument against the use of race in admissions is fast, it's subtle, but it's there. The case has always been based on the notion of discrimination against Americans of Asian descent, but the response of what the SFFA considers to be the unworthy recipient has been clearly spelled out. And lawyers answered the question of how they would pass to a wider criticism of positive action: slowly, then all at once.