Judge – Once Again – Hears Final Arguments in Harvard Affirmative Action Suit

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Lawyers for Harvard University and the advocacy group Students for Fair Admissions (SFFA) met in court this week, nearly four months after the conclusion of a three-week trial in October. Federal Judge Allison Burroughs called on each side to provide additional closing arguments on Feb. 13 — allowing Harvard another chance to prove that it doesn’t discriminate against Asian American applicants and SFFA another chance to prove that it does.

Experts say it will be at least several months before Burroughs issues a ruling in the case, which began when SFFA filed a lawsuit against the university in 2014. It is generally expected that the judge’s decision will be appealed and that the case could eventually reach the Supreme Court, thus having monumental consequence on the future of affirmative action in higher education.

On Wednesday, Burroughs told SFFA lawyer Adam Mortara that one of her main concerns with SFFA’s allegations is the fact that the group provided no Asian American witnesses who could testify that they were unfairly denied admittance to Harvard based on their personal ratings score. One of SFFA’s leading arguments is the fact that Asian American candidates have consistently scored lower on these ratings — which are assigned by admissions officers — than students from other ethnic and racial backgrounds.

Mortara defended this decision as necessary to protect the plaintiffs, who have remained anonymous. He pointed to the case of Fisher v. University of Texas, in which plaintiff Abigail Fisher received widespread ridicule for alleging that white applicants like herself were rejected by UT Austin in favor of less qualified African American students.

Fisher was backed by activist Edward Blum, who is also the organizer of SFFA. He is well-known for supporting similar lawsuits with the goal of overturning affirmative action.

Harvard’s lawyers reiterated on Wednesday their closing arguments from October, stating that race is only one among multiple factors considered in admissions and that it plays no part in personal ratings decisions. They also maintained that race-conscious admissions are necessary to achieve a diverse student population.

In this case and a similar, ongoing lawsuit against The University of North Carolina at Chapel Hill, SFFA has argued that institutions can achieve diversity by considering other factors, such as family income, rather than race and ethnicity.

In Wednesday’s arguments, both Harvard and SFFA also urged Burroughs to place the burden of proof on the opposing side.

Regardless of Burroughs’ final decision, many expect the case to be a years-long battle in the courts. Higher education leaders and other advocates for affirmative action, however, are concerned that the recent appointment of Justice Brett Kavanaugh to the Supreme Court could lead to a weakening or eradication of race-conscious admissions policies should the suit come before the high court. Justice Anthony Kennedy, Kavanaugh’s predecessor, helped uphold race-conscious admissions in 2016 when he cast a swing vote in support of UT Austin. Kavanaugh, however, could side with his right-wing colleagues on the conservative-majority court when it comes to such a decision.