'Where Is The Evidence?' Appeals Court Challenges Claim That Harvard Discriminates Against Asian American Applicants

Students enter a side gate at Harvard University (Joe Difazio/WBUR)
Students enter a side gate at Harvard University (Joe Difazio/WBUR)

A panel of appeals court judges on Wednesday repeatedly challenged the legal claims of a group that accuses Harvard University of intentional discrimination against Asian American students who apply to the Ivy League school.

The three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston appeared skeptical of arguments made by Students for Fair Admissions, which says Harvard imposes a “racial penalty” on Asian Americans. When a lawyer for the group accused the school of racial stereotyping against Asian American applicants, a judge interrupted and questioned the basis of the claim.

“Where is the evidence of racial profiling here?” Judge Juan Torruella asked.

The panel is expected to make a decision on the case in coming weeks. Either way, legal experts believe the case will probably end up before the Supreme Court.

Students for Fair Admissions is asking the appeals court to overturn a trial-level judge's 2019 decision finding that Harvard does not intentionally discriminate against Asian Americans. U.S. District Judge Allison D. Burroughs issued the decision in October after a three-week trial.

In her ruling, Burroughs said Harvard's admissions process is “not perfect” but concluded that there was “no evidence of any racial animus whatsoever.” She ruled that other factors beyond bias could explain why Harvard accepts Asian American students at lower rates than students of other races.

The group's lawsuit alleges that Harvard admissions officers use a subjective “personal rating” assigned to each student to discriminate against Asian Americans. Using six years of admissions data, the group found that Asian American applicants averaged the highest scores in an academic rating but received the lowest personal ratings, and that they were admitted at lower rates.

Harvard denies any bias and defends its use of race in the application process. The school says race is one of many factors considered and that at most it provides a “tip” in favor of underrepresented students. It says the university has a “compelling interest” in attracting a diverse student body to its campus.

Presenting the case to judges, a lawyer for the group said Harvard's practices go beyond the limited consideration of race that has been upheld by the Supreme Court. Attorney William Consovoy said the school's efforts to keep a similar racial makeup among students from year to year amounts to illegal racial balancing.

“The statistical evidence in this case showed that the personal rating discriminates against Asian Americans in a statistically significant way,” Consovoy said.

But Judge Sandra L. Lynch challenged that allegation, saying that, presented with competing statistical models from both sides, the trial court judge sided with Harvard's.

“The district court actually found that Harvard's statistical model was the more reliable one," Lynch said. “So, again, I’m just trying to get your argument.” Consovoy argued that both models were deemed credible.

A representative for the U.S. Justice Department spoke in support of Students for Fair Admissions on Wednesday, arguing that race “pervades every aspect" of Harvard's admissions process. Eric S. Dreiband, assistant attorney general for the Civil Rights Division, said the school's admissions process “unduly burdens” Asian American applicants compared to white applicants.

The Trump administration has opposed the use of race at Harvard and other colleges across the U.S. Last month, the Justice Department found that Yale University discriminates against Asian American and white applicants. The finding, which resulted from a two-year inquiry, was rejected by Yale as “meritless” and “hasty.”

As evidence, the group points to a U.S. Education Department investigation into Harvard's admissions practices in the 1990s. In that case, the agency also explored whether Harvard discriminates against Asian Americans. The school was ultimately cleared.

Speaking on behalf of the university Wednesday, attorney Seth Waxman said the school's personal rating, which was also examined during the federal inquiry, has “assumed a Frankenstein-like significance.” But he argued that the 1990s investigation only helps Harvard's case.

“It reached the exact same conclusion, based on its review of all the evidence, that Judge Burroughs did," he said.



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