Race case against Harvard moves forward

A lawsuit against Harvard on behalf of Asian-American students moved a step further on Tuesday as a US district judge...

Posted: Apr 11, 2018 8:44 AM
Updated: Apr 11, 2018 8:44 AM

A lawsuit against Harvard on behalf of Asian-American students moved a step further on Tuesday as a US district judge proposed a tentative October trial date and suggested ground rules for admissions records to be made public in upcoming months.

Lawyers for Harvard and the group known as Students for Fair Admissions have disagreed over the breadth of confidential materials to be opened in the dispute over how students earn a place at the prestigious Ivy League campus.

"[T]his is an important and closely watched civil rights case. The public has a right to know exactly what is going on at Harvard," the Students for Fair Admissions challengers, represented by William Consovoy, asserted in a letter to Judge Allison Burroughs leading up to Tuesday's hearing.

Their lawsuit alleges that Harvard unlawfully caps the number of high achieving Asian-American students admitted. Engineered by a longtime critic of all racial affirmative action policies, the case more broadly seeks to reverse a 1978 US Supreme Court decision that first endorsed practices favoring blacks and other historically disadvantaged minorities to promote campus diversity.

The group had wanted to make public selected documents obtained from Harvard with a summary-judgment motion due in June.

Harvard, represented in court by William Lee, says the university should be able to screen any material to be cited from the 90,000 pages of confidential material turned over during the discovery phase, to ensure there's no breach of student privacy or other university interests.

Burroughs on Tuesday agreed with Harvard that the materials should first be reviewed in a private court process, but she said she expected most of the relevant materials to be made public and warned against heavy redactions, paragraphs of blacked-out type.

"I hope the document won't be incomprehensible to someone trying to read it," she said.

Burroughs said she expected the litigation at this stage to come down to "a fairly fact-intensive inquiry" of experts' views regarding the Harvard admissions process.

"You'll have your day on the merits this fall," she said, proposing that the two sides promptly confer about a start date of October 15. She said she expected the trial to last two or three weeks.

The case against Harvard has drawn significant outside attention. Last week, the Trump administration sent a letter to the court on behalf of Students for Fair Admissions in its quest to avoid any pre-emptive redactions. The Department of Justice is separately engaged in its own administrative investigation of possible Harvard discrimination against Asian-American applicants.

Siding with Harvard is a group of prospective students, including black and Latino students, who say they want to protect Harvard's "right to consider race in admissions to the full extent allowed by law." They are represented by the long-standing Washington, DC-based Lawyers' Committee for Civil Rights Under Law.

Among some of the Harvard records at issue are those summarizing admissions rates, internal reports and emails, depositions of admissions officials, and expert reports analyzing patterns. The challengers have hired experts to analyze the materials for patterns that would support their claim that Asian-Americans are held to a higher standard than other applicants while the college puts a thumb on the scale for African-Americans and other minorities. They alleged in prior submissions that their evidence includes interviews, internal reports and "incriminating email."

Students for Fair Admissions contends that Harvard engages in unlawful racial balancing, violating Title VI of the 1964 Civil Rights Act, which covers private institutions receiving federal funds.

Harvard has rejected the assertion that it sets Asian-American caps, and its officials emphasize the college's goal of broad student diversity. Admissions officials say they consider all aspects of applicants' backgrounds and their ability to contribute to the academic setting.

The lawsuit was filed in 2014 by Edward Blum, a conservative advocate based in Maine who has devised a series of US Supreme Court battles over racial remedies, typically enlisting white plaintiffs. For this case, which recalls claims of Jewish quotas in the early 20th century, he created the Students for Fair Admissions group and sought Asian-Americans rejected by Harvard.

Under a prior court order, the Harvard admissions materials could be viewed only by Blum's lawyers. On Tuesday, Burroughs said Blum could see material that his lawyers would be using for the June summary-judgment motion, so that he can help with the draft.

Both sides have an eye toward the US Supreme Court, and Students for Fair Admissions noted in its arguments highlighting the public interest in this case that when the high court earlier ruled in disputes over racial affirmative action -- involving the University of Texas (in 2013 and 2016) and the University of Michigan (in 2003) -- more than 90 "friend of the court" briefs were filed by interested parties in each of those cases.

The justices have upheld admissions practices that use race as a one factor among many criteria for who gets a place -- but the rulings have been hard fought and by close votes.

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