On paper, Harvard University looked like it was headed for trouble last year in a lawsuit aimed at dismantling the use of race in college admissions.
Harvard’s admissions staff consistently gave low scores to Asian-American applicants on personal traits, such as kindness and leadership, a discomfiting fact documented by pages of statistical data released in discovery. And that, said Students for Fair Admissions, the group that sued Harvard, pointed plainly to discrimination.
The drum beat of revelations didn’t stop there. Harvard’s cause wasn’t helped by its own 2013 internal report that suggested Asian-Americans could have accounted for a larger share of the class but might have been hurt by the admissions process.
And the stable percentage of Asian-Americans admitted for years before the lawsuit raised questions about whether Harvard deployed some form of racial quota, barred by the law.
“There were several key obstacles that Harvard faced not only in the district court, but in the court of public opinion,” said Rachel Moran, a law professor and former dean of the University of California Los Angeles School of Law.
And yet Harvard won handily. Federal District Court Judge Allison Burroughs in her 130-page ruling found that Harvard did not discriminate against Asian-Americans, that its use of race in admissions was narrow and met legal standards, and that its admissions process was “very fine.”
So, how did the university pull off a clear-cut win in such a consequential case?
William Lee, an attorney for WilmerHale and Harvard’s lead trial attorney, said the university pursued an unusual legal strategy for these types of affirmative action cases: It pushed for the case to go to trial, risking the public airing of potentially embarrassing details.
“The reason we have a trial is to bring to life what on paper you may not be able to communicate,” said Lee who is closely tied to the university as a member of its governing corporation.
Lee, an experienced intellectual property rights lawyer who previously represented Apple Inc. in its lawsuit against Samsung over the patent for the smartphone, said there were hazards in the aggressive path the Harvard legal team chose.
A trial would spotlight embarrassing details about Harvard’s admissions process, including the college’s fawning over the children of donors and alumni and its aggressive pursuit of athletes.
But Harvard, Lee believed, could weather those public relations hits in order to show that its admissions process was racially unbiased and legal.
“If we’re going to demonstrate our admissions process is constitutionally permissible . . . we needed to pull back the curtain and let people see how the process works,” Lee said.
Past college affirmative action cases have relied on a judge’s review of documents and depositions rather than live court testimony. Only one other landmark affirmative action case — against the University of Michigan Law School in 2001 — started with a trial before it was eventually decided by the Supreme Court.
But during the three-week trial last October over Harvard’s admissions practices, the usually secretive university and some of its most tight-lipped administrators went into detail about how they sifted through a pool of more than 40,000 applicants to build a class of about 1,600 students. Ultimately, 13 Harvard officials testified, including the former university president, three current and former deans, and a parade of admissions staff.
To combat the statistically heavy case presented by two experts from Students for Fair Admissions, eight black, Latino, and Asian-American Harvard students and alumni took the stand to share their personal stories of making it to Harvard and the benefits of using race in admissions. Students for Fair Admissions did not call any students or present any cases of applicants who were specifically disadvantaged by Harvard’s admissions process.
Harvard’s strategy was effective, said Mishell B. Kneeland, a former Texas assistant attorney general now in private practice who helped the University of Texas system win an affirmative action lawsuit brought several years ago by Abigail Fisher, a student who alleged she faced discrimination as a white applicant. The Fisher case was also backed by Edward Blum, the leader of Students for Fair Admissions.
Kneeland and other legal experts said Harvard’s witnesses were able to diminish the effect of the revelations from the university’s 2013 internal report and allay fears that admissions officers were purposefully discriminating against Asian-Americans.
“Witnesses are the ones who have the hands-on knowledge of the day-to-day stuff, not the drier statistics — the ‘story’ of how they do what they do,” Kneeland said.
The lopsided count of witnesses in Harvard’s favor was likely also an advantage, she said.
“It’s kind of like in a criminal case,” Kneeland said. “People tend to believe the side that shows up.”
Even as it fought the case in court, Harvard also sought, in some ways, to accommodate critics, making adjustments to its admissions process to address potential problems unearthed by the lawsuit. For example, after Students for Fair Admissions questioned whether race was entering into decisions on the personal scores, leading to low evaluations for Asian-Americans, Harvard issued new guidelines to its admissions officials. Harvard now explicitly warns its screeners against considering race in that category.
This past year, Harvard also admitted a larger share of Asian-American students — to more than 25 percent of the accepted class, up from about 23 percent the previous year.
While Burroughs found Harvard’s process was lawful, her decision may eventually be overturned by the US Supreme Court, whose conservative majority is often hostile to affirmative action.
Students for Fair Admissions has already filed an appeal. And both sides have built their legal teams in preparation for a drawn-out fight.
Harvard’s other WilmerHale attorneys include both a former clerk for Chief Justice John G. Roberts and a former US solicitor general experienced in making oral arguments before the Supreme Court.
The team of four attorneys representing Students for Fair Admissions all clerked for Justice Clarence Thomas, a stern critic of affirmative action.
Adam Mortara, the lead trial attorney for Students for Fair Admissions, told a Harvard Law School gathering last week that Burroughs made a “bad ruling,” according to the Harvard Crimson, the university’s student newspaper.
Mortara predicted that either the Supreme Court will strike down the use of race in college admissions, or that the details of Harvard’s admissions policies, including the advantages and privileges given to some students, will lead to a backlash against affirmative action, according to the Crimson.
“Historians are going to say that Harvard itself struck the mortal blow,” Mortara said at the event.
For the moment, however, Harvard has prevailed.
The university’s strategy to show that it stayed within the boundaries of the current law and demonstrate the importance of race-conscious admissions to diversity in education seems to have swayed Burroughs.
During the trial in October 2018, for instance, Harvard called former Brown University president Ruth Simmons as a witness. Simmons had no involvement in Harvard’s admissions policies, but she testified about growing up as the child of Texas sharecroppers whose education and opportunities were limited. Simmons testified about how going to college broadened her perspective — she received her doctorate from Harvard — and eventually helped her rise to become the first African-American president of an Ivy League university.
Lee said he has known Simmons for years and thought her personal story and academic experience would bring to life Harvard’s perspective and goals on race and education.
“In a trial you always try to tell a narrative,” Lee said. “Who better to bring this to life?”
The testimony seems to have stuck with Burroughs.
In the final paragraphs of her decision arguing that the consideration of race in admissions remains a necessity, Burroughs quoted passages from Simmons’ testimony.
“That eloquent testimony captures what is important about diversity in education,” Burroughs wrote. “For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions.”