Harvard and SFFA Spar Over Discrimination Claims in Post-Trial Hearing

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Edward Blum said he is content with the SFFA lawyers' statements during the additional admissions trials held on Feb. 13. By Mariah Ellen D. Dimalaluan

Lawyers representing Harvard and anti-affirmative action group Students for Fair Admissions had their last chance to convince Federal District Judge Allison D. Burroughs to rule in their favor in a case alleging that the College’s admissions process discriminates against Asian-American applicants Wednesday.

The two sides squared off in a post-trial hearing Wednesday, each summarizing points they had made over the course of a three-week trial that began in the United States District Court for Massachusetts in mid-October.

SFFA originally sued Harvard in 2014, and the case will likely be appealed by whichever side Burroughs does not rule for, according to legal experts. The suit — which could end up in front of the U.S. Supreme Court — may shape the fate of affirmative action at private colleges and universities nationwide.

Wednesday’s arguments focused on the dispute over whether admissions data from recent years show an anti-Asian-American bias in Harvard’s admissions decisions. SFFA alleges that Harvard admissions officers consistently gave lower “personal ratings” — numerical scores assigned to College hopefuls that evaluate them on qualities like humor and grit — to Asian-American applicants than applicants of other races.

Both Harvard and SFFA hired experts to conduct their own analyses of the data. David E. Card, the University’s expert and an economics professor at University of California, Berkeley, argued that there was no statistically significant difference between admissions outcomes for Asian Americans and other applicants. SFFA’s expert, Duke economics professor Peter S. Arcidiacono, contended that the data actually reveals a persistent bias against Asian-American Harvard hopefuls.

“The most important, undisputed fact is that Asian Americans receive statistically significantly lower personal ratings from Harvard, lower than whites,” Adam K. Mortara, the lead attorney for SFFA, argued at the beginning of the hearing.

The University had not adequately explained why the discrepancy between Asian Americans applicants and other applicants that Arcidiacono’s analysis found exists, according to Mortara. He also argued the University needs to identify a variable that accounts for this difference.

“The law is, defendants cannot win discrimination cases by saying it must be some other variable without telling us what that variable is,” Mortara said.

Seth P. Waxman, a top attorney for Harvard, argued there are “many factors” that affect personal rating, including personal essays, recommendations, and alumni interviews. He further argued that there is no way to prove that lower personal ratings reflect racial bias because admissions officers take into account so many factors when assigning them, not all of which he said are reflected in Arcidiacono’s statistical model.

“SFFA has failed to prove that the cause of this disparity was racial bias when one after another admissions officer testified that they didn’t consider race,” Waxman said, referring to the testimony of admissions personnel who took the stand last fall.

Burroughs, too, focused on how to interpret the data, referring to it as Harvard’s “personal rating problem.”

“What am I to do with the statistical analysis?” she asked the lawyers.

Burroughs also asked attorneys to present arguments about what each side has to prove in order to win. A few minutes into Mortara’s arguments, Burroughs interrupted him to ask if, in order to find Harvard guilty of discrimination, she must find that admissions officers intentionally disadvantaged Asian Americans.

“Absolutely not, your honor,” he responded.

Mortara argued that the legal precedent of Teamsters v. United States — a 1977 case that holds that statistics are sufficient to prove racial discrimination — means “statistics alone” can prove that Harvard’s admissions policies are biased without evidence of intentional discrimination.

Waxman, though, countered by arguing Arlington Heights v. Metropolitan Housing Corp. — another 1977 case that holds that both statistical and anecdotal evidence showing intentional racial animus must be present for a judge to find discrimination — more adequately parallels the Harvard admissions suit.

The lawyers also clashed over what would constitute evidence of intentional discrimination. Mortara cited as one example a 2013 report from the University’s Office of Institutional Research that found the admissions protocol produced “negative effects” for Asian-American applicants, arguing that Harvard did not change its admissions process after top administrators read OIR’s findings. Waxman, however argued the report was “incomplete” and not designed to evaluate the fairness of the College’s admissions process.

Arguments did not only center on the College’s admissions protocols, as Burroughs also asked about details of SFFA’s case.

In particular, the judge asked Mortara about what she termed SFFA’s “no victim problem” — the fact that the group did not include any students who they allege should have been admitted to Harvard but were not because of their race.

“Why haven’t you shown me any students who should have gotten in?” she asked Mortara.

He argued that the judge had previously told SFFA that “individual students” were not required to prove the plaintiff’s claims.

William F. Lee ’72, a lawyer representing Harvard and senior fellow of the Harvard Corporation — the University’s highest governing body — argued that, because SFFA had not presented plaintiffs who were not admitted, the group had not adequately supported its claim that “hundreds were wronged.”

“They have not identified one,” Lee said. “They have failed to produce a single rejected applicant who claims discrimination.”

Lawyers for the University and SFFA were not the only ones to speak at Wednesday’s hearing. Genevieve B. Torres of the Lawyers’ Committee for Civil Rights and Jennifer A. Holmes of the NAACP Legal Defense and Educational Fund each delivered fifteen minute statements on behalf of the Harvard students and student groups that filed amicus briefs in favor of the University’s position.

“The plaintiffs tried to erase countless student stories by placing undue evidence on its flawed statistical analysis,” Torres said, arguing that race-conscious admissions provides “critical context” for all applications in addition to improving campus diversity and educational opportunities.

Burroughs is expected to issue her decision in the coming months.

—Staff Writer Camille G. Caldera can be reached at camille.caldera@thecrimson.com. Follow her on Twitter @camille_caldera.

—Staff Writer Sahar M. Mohammadzadeh can be reached at sahar.mohammadzadeh@thecrimson.com