An affirmative action lawsuit brought by nonprofit group Students for Fair Admissions Inc. against the president and fellows of Harvard College is set for trial this Monday, and it’s stacked with high-powered legal clout.
Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts will officiate a rare glimpse into the methods of one the world’s top universities before deciding whether Harvard’s admissions process violates Title VI of the Civil Rights Act of 1964 by intentionally discriminating against Asian-American applicants, as alleged by Edward Blum, president of Students for Fair Admissions.
Blum’s November 2014 complaint claimed that Harvard’s “racial preference” for students “is so large that race becomes the defining feature of his or her application.”
But Harvard disagrees, claiming that race is part of an intricate web of factors considered when accepting or rejecting applications.
Harvard has responded to the suit on its website, saying, “We will continue to vigorously defend the right of Harvard College, and every other college and university in the nation, to seek the educational benefits that come from bringing together a diverse group of students.”
Plaintiffs attorney William S. Consovoy has worked on the case since its inception with his partners at Consovoy McCarthy, a small litigation firm in Chicago. Once trial was in the cards, Cosovoy enlisted the help of a larger firm, peppered with old friends from his time clerking at the U.S. Supreme Court.
Consovoy, his colleague Patrick Strawbridge, and Chicago-based Bartlit Beck attorneys Adam K. Mortara and John M. Hughes once clerked for Justice Clarence Thomas. Consovoy McCarthy attorney Michael H. Park worked under Justice Samuel Alito, while Krista Perry clerked for Justice Anthony Kennedy. Park was nominated to the U.S. Court of Appeals for the Second Circuit on Oct. 10.
The plaintiff’s team is also propped up by members of the Federalist Society, a network of conservative legal scholars.
Mortara will perform opening statements for the plaintiff, while William Lee of WilmerHale in Boston is expected to present Harvard’s openings.
Alongside Lee will be veteran Supreme Court lawyer Seth Waxman of WilmerHale, a former solicitor general under President Bill Clinton.
Dozens of amicus briefs have been filed by interested parties on either side.
The U.S. Department of Justice has backed the plaintiff, claiming that “Harvard provides no meaningful criteria to cabin its use of race,” while prominent civil rights groups have risen up in Harvard’s defense.
“We see this as a very important trial,” said Dennis Parker, director of the ACLU Racial Justice Program, one of the organizations backing Harvard.
In Parker’s mind, Blum’s case is “a means of furthering an attack on admissions policies that have been endorsed by the Supreme Court in a number of cases.”
In one such case in 1978, University of California v. Bakke, the Supreme Court decided that the pursuit of educational benefits of diversity was a compelling government interest that universities could pursue by considering race in admissions.
“What the plaintiffs seek is a challenge to the existing law and a challenge that would undercut efforts to strengthen educational opportunities for everyone by eliminating the consideration of race completely from admissions decisions,” Parker said.
Groups supporting Harvard in this case are of the opinion that race and ethnicity, along with many other factors are important parts of creating a diverse student body.
Student amici from both sides will also present opening statements.
Michaele Turnage Young, senior counsel for the NAACP Legal Defense Fund Inc., represents 25 Harvard student and alumni organizations serving as amici curiae in the lawsuit, some of whom will testify at trial.
Her clients hope the court will uphold what they consider to be “settled law,” allowing colleges and universities to consider race as one of many factors in admissions.
“Unfortunately, we live in a society where educational opportunities in our pre-K through 12 schools are not equal,” Young said. “There are racial disparities in the opportunities to get an education in primary and secondary school. Because of that and also because of well-documented racial bias in standardized testing, applicants don’t have equal opportunity to build a competitive college application.”
The way Young sees it, universities can’t be “race blind” until educational inequities are a thing of the past.
“We just don’t have a level playing field when it comes to applying for college,” Young said.
To prepare for trial, Harvard has hired statistical experts to analyze the effects of removing the consideration of race from its admissions process.
After opening statements, the plaintiff is expected to call Harvard’s dean of admissions and financial aid, William R. Fitzsimmons, to the stand first.
According to Blum, Fitzsimmons and other officials have disregarded studies conducted by the college, which discovered evidence that Asian-Americans had less chance of being admitted, despite being some of the highest academic performers.
According to Young, if the plaintiffs get their way, that ”wouldn’t do much” to increase the numbers of Asian students admitted to Harvard.
“Most of those seats would be taken by white applicants, not Asian-American applicants,” Young said. “Which is interesting, given that the plaintiff in this lawsuit is claiming that Asian-American applicants are being discriminated against.”
Emily Van Dyke of the Native American Alumni of Harvard University graduated in 2003, when “there was some diversity, but I would say not enough.”
According to Van Dyke, the idea of a racially blind admissions process is “just crazy.”
“If you grew up in a reservation, are you not allowed to say so?” Van Dyke said. “(An applicant’s) journey to learning more about their heritage would likely be one of the stories they’d want to tell.”