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US District Court Judge Allison Burroughs observed in her order that allowing outside testimony from students, represented by major civil rights organizations, would offer “valuable perspectives that will otherwise be absent from the trial.”
Harvard has denied any unlawful discrimination as it has defended a “whole student” approach that takes account of many factors, including academic achievement, extracurricular activities, family background and personal character, as well as race. The US Supreme Court held up the Harvard approach as a model when it first endorsed campus affirmative action in a 1978 case.
The diverse groups of students scheduled to testify Monday say if the challenge to the university’s admissions policy succeeds, it would hurt traditionally disadvantaged racial minorities and diminish the educational experience for all students.
“The impact on students of color would be profound,” the students represented by the NAACP Legal Defense Fund said in a court filing.
When Burroughs granted its request and that of the Lawyers Committee for Civil Rights Under Law to participate at trial, she asked that the attorneys who would question the students — up to four witnesses for each group — have five or less years of professional experience. Burroughs wrote in the October 3 order that she believed it valuable to give younger advocates trial experience.
At this US district court trial level, Burroughs will eventually decide who wins Students for Fair Admissions v. Harvard. Yet both parties, and the judge herself, have predicted the case would ultimately be resolved at the US Supreme Court.
The current high court is the most conservative in decades, and a majority may be poised to reverse the 1978 Regents of the University of California v. Bakke, which allowed universities to use race as one of many factors in an admissions decision and which forbade quotas. The justices have affirmed Bakke through the years, but narrowly, by a single vote.
Data, research experts testify
Throughout the first two weeks of the trial, Students for Fair Admissions have portrayed Asian American applicants as the victims of intentional racial bias.
“Broadly, there is evidence of discrimination against Asian Americans in the admissions process,” Peter Arcidiacono, the group’s leading data witness, testified on Thursday, “both in how they rate applicants and in the admissions decisions themselves. … And the magnitude of racial preferences is quite large. Roughly two-thirds of African-American [applicants] are admitted as a result of racial preferences and half of Hispanic applicants.”
Referring to his analysis of Harvard admissions patterns, Arcidiacono, a Duke University economics professor, added, “When we take race out of the admissions process, we’re going to be taking away the Asian-American penalty, the bump African-Americans receive and Hispanics receive, and then we’ll see who the winners and losers are as a result of that.”
Earlier in the week, SFFA witness Richard Kahlenberg argued that Harvard would be better served by seeking diversity through family income and other socioeconomic factors. Kahlenberg, a senior fellow at the Century Foundation specializing in education research, asserted that preferences based on race foster resentment and stigma among students.
Harvard’s lawyers have disputed the SFFA witnesses’ analyses of admissions data and more fundamentally tried to keep the focus on the value of a screening system that attempts to bring in students with as many different racial backgrounds and experiences as possible.
“Student body diversity in all of its dimensions, including racial diversity, is essential,” Rakesh Khurana, the dean of Harvard College, testified. “It’s the oxygen by which our institution progresses. It’s how our research progresses. It’s how our teaching progresses, and it’s how ultimately we are able to do our part to contribute to society.”
Testimony in the closely watched trial has also exposed Harvard’s less lofty practices of favoring children of alumni and wealthy donors, those with connections to faculty and staff, and athletic stand-outs. Internal emails and other trial exhibits have opened up many dimensions of who gets a place and who does not, as the admissions office screens about 40,000 annual applications for a freshman class of 1,660.
Future in Supreme Court?
Students for Fair Admissions was set up by Edward Blum, a longtime opponent of affirmative action who in the past has used white plaintiffs to challenge racial policies.
Blum previously enlisted Abigail Fisher, a white student who had been denied admission to the University of Texas at Austin, in a case against admissions practices that considered applicants’ race among admissions’ criteria. In a 2016 ruling by the US Supreme Court, Fisher lost by a single vote. The decisive vote upholding the UT program was cast by former Justice Anthony Kennedy, who retired last July, and was recently succeed by conservative Justice Brett Kavanaugh.
The Lawyers’ Committee for Civil Rights Under Law, one of the group’s presenting testimony on Monday, has been involved in the case since early 2015, soon after Blum filed it against Harvard in November 2014.
The civil rights group contended in a written filing that SFFA’s lawsuit “uses Asian Americans as a cover” in an effort to undermine policies intended to counteract racism and bias.
“At the heart of this lawsuit,” the group, representing a coalition of black, Latino and Asian-American students, argued, “is whether Harvard has the academic freedom to value diversity in ways in which our country has fallen short: bridging racial divides and instilling greater cross-cultural understanding among its talented student body of future leaders.”
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