Harvard officials, from the admissions team to a former president, will be asked to explain and defend under oath how the elite university considers race when it selects a class. Some Harvard students and alumni, including Asian-Americans, are also expected to testify in support of race-conscious admissions and the benefits of campus diversity.
But none of the Asian-Americans who the lawsuit claims were victims of racial bias are expected to take the witness stand in federal court in Boston. Their identities are undisclosed, and the details of their stories largely unknown except to confidants and lawyers who questioned them before the trial.
The public voice of Harvard’s legal foe is Edward Blum, president of Students for Fair Admissions, the group that sued. Blum, 66, who is white and lives in Florida and Maine, is known for organizing legal challenges to affirmative action policies and voting rights laws.
He championed the claim that the race-conscious admission policy of the University of Texas was unconstitutional, through a lawsuit on behalf of a white woman named Abigail Fisher whose application had been denied. The Supreme Court upheld the UT policy in 2016.
In contrast with the Fisher case and other landmark litigation on college admissions, Blum said those who allege they were wronged by Harvard will remain unnamed in the trial starting Monday. They are, he said, members of his group.
“As the court and the parties understand, these students will remain anonymous because of the harassment and social media ugliness that public disclosure would allow,” Blum told The Washington Post in a telephone interview. “The parties recognized that the harassment and threats made to Abigail Fisher during her lawsuit against the University of Texas compelled everyone to keep the identities of these students anonymous.”
A group called Asian American Coalition for Education and others rallied Sunday afternoon in Boston in support of the lawsuit. But critics question Blum’s agenda. “Is he concerned about discrimination against Asian-Americans?” said Janelle Wong, a professor of Asian-American studies at the University of Maryland, who supports the Harvard policy. “My answer is no way.”
Blum acknowledged that he had sought out Asian-Americans whose stories would provide examples for the case, much as he looked for white students to launch cases elsewhere. He said that approach was no different from how other legal interest groups recruit plaintiffs to combat discrimination.
“The cornerstone mission of this organization is to eliminate the use of race and ethnicity in college admissions,” Blum said. “Period. We make no bones about that.”
Courts sometimes shield identities of alleged victims in civil suits. Before the trial, Harvard challenged the standing of Blum’s group to sue. But U.S. District Judge Allison D. Burroughs ruled that the case should proceed.
The trial, which could last three weeks or more, is the latest round in the long-running debate over affirmative action. However, Burroughs rules, both sides expect the verdict to be appealed. Blum said he hopes to push the issue back to the Supreme Court in an effort to overturn precedents that allow universities, within certain limits, to consider race in admissions. The pivotal vote in the 2016 ruling upholding UT’s policy was Justice Anthony Kennedy, who has since retired and been replaced by Justice Brett Kavanaugh.
Students for Fair Admissions filed its lawsuit against Harvard in 2014, alleging that the university limits the number of Asian-Americans admitted to its undergraduate college in an effort to boost applicants from other racial and ethnic groups. The group also alleged that Harvard has not given adequate consideration to how it might create a diverse student body without resorting to affirmative action.
Harvard denies the allegations. The university says it follows Supreme Court guidance, with race as one of many factors in a “holistic” review of applications, alongside grades, rigor of classes, test scores, extracurricular activities, family background and other information.
“Let me be unequivocal: The College’s admissions process does not discriminate against anybody,” Harvard President Lawrence S. Bacow wrote Wednesday to the university. “I am confident the evidence presented at trial will establish that fact.”
Bacow acknowledged that the trial is likely to stir passions. The lawsuit, he wrote, “has the potential to create divisions on our campus and in our broader alumni community. Reasonable people may have different views, and I respect the diversity of opinion that this case may generate.”
In the last admission cycle, 42,749 applicants sought to enter Harvard’s freshman class. The university offered admission to 1,962, fewer than 5 percent, one of the nation’s lowest rates. Of those admitted, 23 percent were Asian-American. That’s far higher than the Asian-American share of the nation’s population, which is about 6 percent, according to the census. But critics of affirmative action say there probably would be more Asian-Americans at Harvard and other elite schools, on the basis of their academic credentials, if race were not a factor.
Regardless, Harvard says the Asian-American share of its admitted class has grown significantly in the past decade.
The first witness expected in the trial is Harvard’s longtime dean of admissions, William R. Fitzsimmons. Others likely to be called include Bacow’s predecessor, Drew Gilpin Faust, and various admissions officers and administrators.
Burroughs will also allow civil rights advocacy groups to call as many as eight witnesses who support Harvard’s policy, including students and alumni. Jin Hee Lee, senior deputy director of litigation for the NAACP Legal Defense and Educational Fund, said the NAACP group expects to call three Harvard students to testify: one Vietnamese-American, one African-American and one biracial student of Mexican and African-American background. It will also call a Chinese-American graduate to testify, Lee said.
Lee said these witnesses will vouch for the educational importance of diversity on the Harvard campus. “They will also talk about how integral race is to their own identity,” she said.
Students for Fair Admissions bases much of its case on admissions data and documents obtained through pretrial discovery. In June, it filed papers with the court showing the results of an analysis from Duke University economist Peter S. Arcidiacono. He concluded that the data show Asian Americans suffer a “significant penalty” relative to white students when Harvard rates their personal qualities and when it makes admission decisions.
Arcidiacono said the data also show Asian-American applicants have lower chances of admission in certain situations than white, African-American and Hispanic applicants with similar profiles.
An expert whom Harvard retained, University of California at Berkeley economist David Card, disputed those conclusions and said Arcidiacono omitted data from the analysis that would have changed the findings. Both experts are expected to testify.