In Harvard affirmative action case, judge appears skeptical

Harvard University is embroiled in a court case regarding its admissions policies. Jonathan Wiggs/Globe Staff/Globe Staff

US District Judge Allison Burroughs appeared skeptical Wednesday that plaintiffs had offered enough proof that Harvard College intentionally discriminated against Asian-American applicants, given that no rejected students testified during a three-week trial.

Burroughs, speaking from the bench during the final oral arguments in the case, said the lack of Asian-American student witnesses was a “problem” in the lawsuit, brought against Harvard by Students for Fair Admissions.

In a case that could overturn decades-old law on the use of affirmative action in higher education, Students for Fair Admissions has alleged that Harvard discriminates against Asian-American applicants by giving them lower ratings on personal scores, which are crucial to admissions and measure such qualities as courage and kindness. The organization has argued that Harvard’s use of race to create a diverse undergraduate class hurts Asian-American applicants.

But during the trial, Students for Fair Admissions called no members of the organization to the stand and relied primarily on statistical analysis, its experts, and documents and testimony from Harvard officials.

Previous cases over the past 40 years that have challenged affirmative action in college admissions have traditionally centered around an individual student who was denied a seat on campus. Abigail Fisher, backed by Students for Fair Admissions, challenged the University of Texas system’s admissions policy a few years ago. Allan Bakke went up against the Regents of the University of California in the 1970s. Barbara Grutter sued the University of Michigan and its president more than 15 years ago. All those cases involved white students.

Students for Fair Admissions said its decision not to present student witnesses was based, in part, on its fear that in the current polarized climate they would be harassed.

“Somebody would have done something horrible to one of our students,” said Adam Mortara, an attorney for the group.

Mortara and attorneys for Harvard on Wednesday appeared briefly in front of Burroughs.

The judge, who is likely to rule on the case in the coming months, also warned Harvard that it, too, had a weakness in its case.

In particular, Burroughs said, the statistical analysis that showed Harvard gave Asian-American applicants lower personal scores was a problem.

No matter what Burroughs decides, legal and higher education experts have said that they expect the ruling will be appealed and that the fate of the case and of affirmative action could eventually be determined by the Supreme Court.

While this case has focused on Harvard, it could have repercussions throughout higher education, since many elite universities use similar admissions practices to ensure diversity on their campuses.

This case, involving admissions by one of the most selective universities in the world, has drawn widespread attention.

On Wednesday, activists, law students, Asian-American families, and the media spilled into an overflow courtroom.

Harvard’s president, Lawrence Bacow, sat in the audience, as did Edward Blum, the head of Students for Fair Admissions and the chief architect of the case against the university.

The trial has pulled back the curtain on Harvard’s secretive admissions process, revealing sometimes embarrassing details, particularly about the lengths to which it goes in order to cater to well-heeled and well-connected donors.

Harvard’s former president and its admissions gatekeepers were forced to take the stand, detailing how they select 2,000 undergraduates out of more than 40,000 applicants each year.

Harvard officials defended the admissions practices and insisted the university considers hundreds of factors, from grades and extracurriculars to where applicants live and what their parents do for a living.

Race is one of many factors and plays a significant and positive role only when students are on the bubble and officials are trying to figure out whether to admit them, said Seth Waxman, an attorney who represents Harvard.

Harvard has insisted that eliminating the use of race in admissions would create a far less diverse campus and significantly reduce the number of black and Hispanic students admitted every year.

At Harvard, 21 percent of students are Asian, nearly 12 percent are Hispanic, and 8 percent are black; the majority of the campus is white.

Harvard’s attorneys accused Student for Fair Admissions of using laws crafted to curb discrimination and expand opportunities for minorities to instead limit access.

The case relies heavily on dueling statistical analyses of six years of Harvard admissions data.

According to Students for Fair Admissions, only 22 percent of Asian-American applicants on the top 10th of the academic ladder received high personal ratings, compared to about 30 percent of white applicants. Harvard’s top black and Hispanic applicants were even more likely to get high personal ratings.

The organization pointed out that an internal analysis done by Harvard’s staff before the lawsuit was filed also raised questions about whether Asian-Americans were disadvantaged in these ratings.

Mortara said Wednesday that Harvard has failed to explain why Asian-Americans receive these lower scores on personal qualities.

He also pointed out that as the case was being prepared for trial, Harvard for the first time explicitly instructed admissions officials not to use race in the personal ratings. Harvard said the instructions simply formalized existing practice.

Burroughs on Wednesday also indicated she is weighing arguments about whether, in order to prove discrimination, Students for Fair Admissions must show that Harvard acted intentionally and out of some animosity toward Asian-Americans.

“I’ll get to work on this,” Burroughs said before ending the session.