Proponents of affirmative action stand outside the U.S. Supreme Court on the day of arguments in the case Fisher v. University of Texas at Austin , on December 9, 2015.
Proponents of affirmative action stand outside the U.S. Supreme Court on the day of arguments in the case Fisher v. University of Texas at Austin , on December 9, 2015. (Diego M. Radzinschi)

Harvard University’s legal team, relying on the U.S. Supreme Court’s ruling in June for affirmative action, is urging a federal judge to dismiss two of six charges in a suit that accuses the university of discriminating against Asian-American student applicants.

The high court’s 4-3 ruling in Fisher v. University of Texas “makes clear” that two counts against Harvard are “without legal merit,” according to Seth Waxman, the Wilmer Cutler Pickering Hale and Dorr partner who represents the university.

The lawsuit, filed by Students for Fair Admissions in Massachusetts federal district court, and a similar case brought against the University of North Carolina, had been inactive while the parties awaited the outcome of the University of Texas case. The Harvard lawsuit, filed in 2014, is now continuing with extensive discovery recently approved by the judge.

Waxman’s motion in Students for Fair Admissions v. President and Fellows of Harvard College may be the first effort to rely on the high court’s three-month-old ruling in the Texas case.

The Supreme Court’s decision “reaffirmed that universities have a compelling interest in admitting a student body that is diverse along many dimensions, and that universities may consider all aspects of the applicants’ background and experience, including their race or ethnicity, in doing so,” Waxman wrote in court papers.

But the challengers’ legal team—attorneys at Consovoy McCarthy Park—countered that Harvard’s motion for judgment on those counts is “premature” and “self-serving.”

One of the claims in the Students for Fair Admissions suit calls for overruling Supreme Court decisions that held that “diversity” is a compelling government interest in using race as a factor in admissions. The complaint alleges that “those decisions were wrongly decided at the time they were issued and they remain wrong today. ‘Diversity’ is not an interest that could ever justify the use of racial preferences under the Fourteenth Amendment and Title VI.”

That count, Waxman argued, seeks to repudiate nearly 40 years of consistent Supreme Court precedent. The court’s ruling in Fisher “left no doubt that diversity remains a compelling interest, and that universities may consider race (among other factors) in a narrowly tailored way to accomplish that interest,” Waxman wrote.

In the second count challenged, the plaintiffs claim the university violates Title VI of the 1964 Civil Rights Act because—contrary to Harvard’s statements in a case from 1978—the university is not using race “merely to fill the last few places in the entering freshman class.”

The challengers contend Harvard told the Supreme Court in an amicus brief in Regents of Univ. of California v. Bakke that it was using race as a factor in admissions only when it had “a few places left to fill” in the freshman class.

Students for Fair Admissions contends “for Asian Americans, race or ethnicity is a factor in admissions decision far beyond those competing for the last few places.”

Waxman argued in his motion that the Supreme Court has never held that a university may use race only to fill the last slots in an entering class.

The Bakke decision, Waxman wrote, rejected an admissions system that reserved a set number of seats in each class for individuals from preferred ethnic groups. The Supreme Court “has repeatedly endorsed individualized, whole-person review of all applicants that takes race, ethnicity, and many other attributes into account throughout the admissions process,” Waxman said.

Patrick Strawbridge of Consovoy McCarthy Park countered in a reply to the court that Harvard’s motions should be tabled by the judge because it “will require the court to resolve a fundamental dispute between the parties as to the kinds of race-based admissions programs allowed under Supreme Court precedent.”

Briefing and arguing that complex issue now, Strawbridge wrote, will not streamline the litigation.

Harvard’s motions, he said, are premature, procedurally improper and violate the court’s scheduling order, which is the product of “intense negotiations, a lengthy status conference, and the court’s close supervision.”

Edward Blum, head of the Project for Fair Representation, which is sponsoring and funding the lawsuits against Harvard and the University of North Carolina, declined to comment on Waxman’s push to dismiss two counts.

In his 2016 annual report to Students for Fair Admissions, Blum said the claims in the Harvard and North Carolina lawsuits differ substantially from those at issue in the University of Texas case.

The Supreme Court’s ruling in that case, Blum wrote, “did not alter the legal standard; it applied that standard to peculiar facts.” Whether Students for Fair Admissions “can prevail will turn, as it must, on whether the evidence shows that Harvard and UNC are discriminating on the basis of race.”