A federal lawsuit alleging Harvard University discriminates against Asian-American applicants goes to court this week in Boston.
While the case focuses on Harvard, it could have big consequences for higher education, especially if it moves on to the U.S. Supreme Court. At stake is 40 years of legal precedent allowing race to be one factor in deciding which students to admit.
The group Students for Fair Admissions, led by conservative legal strategist Edward Blum, is suing Harvard, charging the university engages in “racial balancing,” which is illegal, and discriminates against Asian-American applicants by rating them lower on intangible traits like courage, kindness and leadership.
“Harvard is systemically saying that Asian candidates are not likeable and don’t have good personalities … which is nothing but racist,” says Lee Cheng, a lawyer and secretary of the Asian American Legal Foundation, which supports the lawsuit.
“It perpetuates, feeds and creates stereotypes,” Cheng says.
Cheng is Chinese-American and graduated from Harvard in 1993. He believes Harvard’s admissions process upholds stereotypes that Asian-Americans just do well in math and standardized tests.
According to Students for Fair Admissions, none of the anonymous, Asian-American plaintiffs who claim they were denied admission will testify. Still, Cheng thinks the group has a chance of winning.
“The people who are harmed who are the basis for this group to file this lawsuit are concerned that they will be discriminated against in graduate school admissions as well as in job applications,” Cheng says. “Their existence is real. If they weren’t real, this lawsuit couldn’t move forward.”
Civil rights activists and college leaders see the lawsuit as an attack on race-conscious admissions, which, in a series of decisions since 1978, the Supreme Court has allowed if done carefully.
Harvard has denied the charges, saying Asian-Americans account for 23 percent of the students admitted to this year’s freshman class.
“Nobody wants to be judged on their numbers alone,” Harvard President Larry Bacow said at a higher education event in September. “People understand and recognize that we learn from our differences, that creating a diverse learning environment enriches the learning experience for every student on campus.”
Ted Shaw is the director of the Center for Civil Rights at the University of North Carolina’s Law School. He says, in the past, opponents of considering race in admissions have gone after top public institutions. He believes the Harvard suit is an attempt to broaden that attack to private, selective colleges.
“This is a very important moment because the balance of the [Supreme] Court is in play,” Shaw says. “And so we can’t assume that the results that have [been] obtained in previous cases are going to continue.”
Supreme Court Justice Anthony Kennedy was the key swing vote in the 2016 decision that preserved race-conscious admissions at the University of Texas at Austin. Kennedy retired earlier this year, and Brett Kavanaugh recently replaced him.
In August, the U.S. Justice Department threw its support behind the lawsuit, saying Harvard’s admissions process “may be infected with racial bias.”
U.S. District Court Judge Allison Burroughs, who was nominated by President Barack Obama and sworn in in 2015, will preside over the non-jury trial.
Earlier this month, Burroughs granted Harvard students and alumni permission to testify and make their case for racial and ethnic diversity. Harvard’s dean of admissions, William Fitzsimmons, and former president, Drew Faust, will also take the stand.