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Harvard judge asks where Asian-American victims are

A federal judge presiding over a race bias suit against Harvard College had two main questions for the combatants: Where are the Asian-American applicants who say the school discriminated against them in the admissions process, and why does the college give Asians poor personal ratings?

Those questions have emerged as key issues in a lawsuit challenging affirmative action at Harvard — and, if the plaintiffs prevail, probably at other colleges. The closely watched case is likely to reach the Supreme Court.

During three hours of argument in Boston on Wednesday, U.S. District Judge Allison Burroughs asked a lawyer for Students for Fair Admissions, which brought the suit, why there was no testimony at last year’s three-week trial from an applicant allegedly denied admission because of bias. Then the judge wanted a lawyer for Harvard to explain why it imposes a lower personal rating on Asian-American applicants than on African-Americans and Hispanics.

“The plaintiffs have the ‘no victims’ problem,” Burroughs said. “But Harvard has the ‘personal ratings problem.’”

Which problem carries more weight with the judge will help form her decision on whether the school’s race-conscious admissions policy is legal.

Students for Fair Admissions, led by anti-affirmative-action activist Edward Blum, sued the college in 2014, claiming it engages in “racial balancing” to cap the number of Asian-Americans at the nation’s oldest and wealthiest college, and seeks to force Harvard to abandon race as a factor in the process.

Harvard says the personal rating is based on variables including teacher and personal recommendations and assessments from alumni interviews, and that race is just one factor among many it considers in building a diverse student body, as the Supreme Court permits. Others include character and socioeconomic background.

The trial, which shone a light on Harvard’s admissions process, included emails from 2011 in which a dean expressed delight at learning that the offspring of some wealthy donors had been admitted, while another official discussed the possibility of acquiring an art collection. The suit comes as Harvard is defending itself against separate claims that its policy against single-sex social clubs is discriminatory and especially harms women.

“Harvard has never come up with a race-neutral explanation why African-Americans and Hispanics have a better personal rating,” plaintiffs’ attorney Adam Mortara said in court. He argued that a statistical analysis by an expert for SFFA was evidence of an “Asian penalty.”

Burroughs asked Mortara if she would need to conclude that all the Harvard officials who testified for the school weren’t credible in order to find that Harvard intentionally discriminated against Asian-Americans. He said he “did not have to prove evil racist intent” and that his evidence established “a pattern and practice of statistically significant Asian penalty.”

At one point Burroughs said, “You haven’t shown me any students.”

“Because you told us that we didn’t need to call individual students,” Mortara responded. During a rebuttal later in the afternoon, he argued the plaintiffs didn’t want to expose the students to ridicule, though he noted that Asian-American students and alumni had testified — in favor of affirmative action.

SFFA says Asian-Americans make up the strongest Harvard applicants by numerous criteria, including grades and test scores, and argues that if the school relied solely on academic performance, they would make up at least 40 percent of its student body, rather than 23 percent. Asian-Americans account for about 5.6 percent of the U.S. population.

The Trump administration threw its support behind the plaintiffs in August, when the Justice Department filed an argument that Harvard uses a “vague personal rating,” including “likability” and “human qualities,” that illegally disadvantages Asian-American applicants by invoking stereotypes.

Bill Lee, a lawyer for Harvard who is Chinese-American and an alumnus, said in court on Wednesday that the plaintiffs had a “devolving theory of racial bias” and seized on SFFA’s failure to call any students to the witness stand. He noted that in earlier cases that reached the Supreme Court, including those featuring Allan Bakke, Barbara Grutter and Abigail Fisher, the plaintiffs all testified at trial to how they’d been harmed.

“It is really remarkable, in the cases we’re talking about — Bakke and Grutter, Fisher I and Fisher II — there was an individual, somebody who was discriminated against,” Lee said. “But what you have here is no member of SFFA, not a single member, not a single Asian-American applicant to Harvard, who was denied admission testified.”

SFFA’s “ultimate grievance” is with Supreme Court rulings that support the use of race as one factor in admissions, Lee said in court papers ahead of Wednesday’s hearing. The plaintiffs know barring race as a factor would “reduce the number of African-American and Hispanic students by roughly 1,000 in a student body of 6,700,” he said.

Of the 42,749 students who applied for admission to the Class of 2022, a record low of 4.59 percent were offered spots. Just over 15 percent of the class is African-American, 12.3 percent is Hispanic and 22.9 percent is Asian-American.

The case is Students for Fair Admissions v. Harvard College, 14-cv-14176, U.S. District Court, District of Massachusetts (Boston).

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