Appeal court judges pound DOJ attorneys in arguing against Harvard's affirmative action case

A three-judge panel of the 1st U.S. Circuit Court of Appeals challenged the Department of Justice attorneys who allege that Harvard's admission process discriminates against Asian Americans.

When a lawyer for the Students for Fair Admissions accused the school imposing a "racial penalty" on Asian Americans, one of the panelists interrupted and questioned the basis of the claim.

“Where is the evidence of racial profiling here?” challenged Judge Juan Torruella last Wednesday (Sept. 16) when the appeal hearings of SFFA v. Harvard began in the Boston court.

“Attacks on race-conscious admissions policies are dangerous and harm equal opportunity for all," said a statement from Asian Americans Advancing Justice. The case against Harvard used Asian Americans as a wedge against other students of color, when Asian American students benefit from affirmative action and race-conscious admissions policies.

"We still need affirmative action," continued the statement. "The reality is that race continues to unfairly limit educational opportunities for all students of color. Cold numerical indicators like grade point averages and standardized test scores capture and magnify those inequalities and cannot be fairly evaluated without considering the real-life impact of race and racism. Nor are standardized test scores accurate predictors of academic success. Our full life experience, including race, is also part of what we bring to the table."

SFFA, an anti-affirmative action group, is using Asian Americans as a front to dismantle Harvard's admissions process that includes race as one of the factors in evaluating student applications. Although none of the Asian American students allegedly rejected by Harvard failed to appear in court, SFFA claims racial stereotypes work subjectively against Asian applicants to Harvard.

SFFA claims that Black and Hispanic student applicants  with lower test scores were taking the place of bettere qualified Asian American students.

NAACP Legal Defense and Education Fund Senior Deputy Director Jin Hee Lee, representing 26 Harvard-affiliated organizations,  made clear the difference between race-conscious admissions and racial stereotyping.

“Every one of the organizations that I represent condemns race discrimination against any person,” Lee said. “But this case does not seek to eliminate bias against Asian Americans, as demonstrated by the sole remedy that SFFA gives, which is the complete elimination of race conscious admissions and nothing more.”

In one of the sharpest exchanges Judge Sandra Lynch strongly questioned lawyers challenging Harvard's affirmative action policies on Wednesday, implicitly disputing their claims of bias against Asian American students and assertions of Supreme Court precedent.

"You started out by saying that the Harvard system is intentionally discriminatory because it uses subjective criteria," Lynch told William Consovoy, representing SFFA. "But in the Bakke case, which of course binds us, they also used subjective criteria and talked glowingly of Harvard's plan at the time."

Lynch was referring to Regents of the University of California v. Bakke, the 1978 case in which the Supreme Court first allowed colleges to use race as a "plus" factor in admissions for campus diversity.

"We're saying it is more susceptible to bias infiltrating the system," clarified Consovoy, "because it uses subjective criteria. ... I think that's just common sense."

Almost a year ago, U.S. District Court Judge Allison Burroughs ruled that Harvard’s admission policies don’t discriminate on the basis of race, don’t engage in racial balancing or use quotas, and don’t place undue emphasis on race in considering applicants’ admissions files, according to CNN. In his ruling, the judge suggested that Harvard couldn’t offer students the benefits of a diverse campus if it stopped considering race in admissions.

In an emailed statement immediately following the conclusion of oral arguments, SFFA President Edward Blum said his organization was ready to challenge the District Court’s ruling to the end.

“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. “If necessary, Students for Fair Admissions is prepared to take this case to the U.S. Supreme Court.”

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