Harvard University’s use of race in admissions was once again under scrutiny during a federal appeals court hearing Wednesday, and this time opponents had a new and vocal ally: the US Department of Justice.
Arguing that race is “saturating” undergraduate admissions at the college and that a Massachusetts federal district court judge erred in siding with Harvard last year, the Justice Department urged a three-judge appeals court panel to overturn the decision.
“What we have here is an attempt by Harvard College to enshrine internally the use of race, and do it in a way that balances the class and that injures Asian-American applicants,” said Eric Dreiband, the assistant attorney general in the civil rights division at the Justice Department. “What we have here . . . is an expansive, pervasive use of race.”
Students for Fair Admissions brought the initial challenge to Harvard’s admissions process and in 2018 the Justice Department filed a statement of support in the lower court. But this is the first time it has made an oral argument in the case.
The Justice Department’s more prominent role at this juncture highlights the agency’s increasingly aggressive challenge to the use of race in admissions. In August, the Justice Department threatened to sue Yale University over its use of race in admissions, claiming the New Haven school discriminated against Asian-American and white applicants.
Under current law, universities are allowed to consider race in evaluating applicants in order to create a more diverse campus as long as it is narrowly used and administrators have considered other alternatives, such as socioeconomic-based admissions.
Opponents of affirmative action have been trying to end race-conscious college admissions for decades. Legal experts anticipate that the Harvard case could eventually end up before the US Supreme Court, where a more conservative panel of judges could end affirmative action in higher education.
“There’s no surprise that this would be the kind of case that would wind its way to the Supreme Court,” said Art Coleman, a former deputy assistant secretary at the US Department of Education’s civil rights office during the Clinton administration. Coleman was one of nearly 500 people who listened to a livestream of the hearing before the First Circuit Court of Appeals Wednesday.
The appeals court will likely rule in the next few months.
Still, Students for Fair Admissions faces an uphill battle to get the lower court decision overturned, Coleman said.
Students for Fair Admissions has argued that Harvard admits Asian-Americans at lower rates, considering their share in the applicant pool. The group also argues that Asian-Americans score lower on the personal rating, which Harvard uses to evaluate candidates and measure qualities such as courage, kindness, and leadership.
After a more than three-week trial last year, US District Court Judge Allison Burroughs disagreed.
In her 130-page ruling, Burroughs offered a robust defense for the continued use of race in admissions. Although Burroughs said the college’s admissions process could be improved with more training and monitoring to avoid potential implicit bias, she called Harvard’s admissions process “very fine” and legally sound.
Still, Edward Blum, the leader of Students for Fair Admissions, who also unsuccessfully challenged the University of Texas’s affirmative action process several years ago, said he hopes the First Circuit will reverse the decision. He noted that the appeals court was keenly aware of the details of the case, which relied heavily on competing statistical reviews of admissions data.
“It is our hope that this court will carefully examine the massive amount of irrefutable evidence we presented at trial that proved Harvard’s systematic discrimination against Asian-Americans and reverse the lower court’s ruling,” Blum said in a statement.
During Wednesday’s hearing, the judges noted that Burroughs found no evidence of intentional discrimination and expressed skepticism about whether unintentional bias was grounds to overturn the lower court’s decision.
“I’m just trying to get your argument," Judge Sandra L. Lynch said to the attorney for Students for Fair Admissions.
Another judge questioned whether there was any evidence of racial stereotyping.
The personal rating continued to be a key concern at the appeals court too. In her decision, Burroughs acknowledged that Asian-American applicants overall received lower personal scores, but said the reasons for the disparities were unclear and may be due to high school counselor and teacher recommendations and may be the result of implicit bias.
Seth Waxman, an attorney for Harvard, defended the university’s use of a personal rating and said it had taken on disproportionate significance in the case, becoming a kind of “Frankenstein,” he said.
Harvard, which denies that its process disadvantages Asian-American applicants, has said it uses the personal score as one of many factors in evaluating the more than 40,000 applicants who seek admission to its 1,600-seat freshman class.