Read: Harvard’s impossible personality test
The main question is: If race is a plus for some students, is it also a minus for others? The plaintiffs argue that there is a racial penalty for Asian students. And they allege that implicit bias on the part of Harvard’s admissions officers when reviewing applications is the reason for that supposed minus. “Evidence of bias and stereotyping can suffice to show intentional discrimination,” Hughes said.
Over the course of the trial, SFFA ran both a legal and a public-relations campaign. They leaned on several thorny issues that often frustrate the public: Harvard’s legacy-admissions process, preferences for children of donors, and the advantage that recruited athletes get. But none of that mattered on Friday. The personal ratings, and the alleged use of race in them, was the focus.
In its closing statement, Harvard offered a defense of its process, and a defense of Supreme Court precedent. “SFFA began its opening statement by contending that ‘the wolf of racial bias is at Harvard's door,’”Bill Lee, the lead attorney for Harvard, said. “That wolf is not intentional discrimination,” he continued. “That wolf comes in the form of SFFA ... It is those who would turn back the clock,” and eliminate the “not only sanctioned” but “lauded” consideration of race in individual student applications. “The goal of SFFA,” Lee proclaimed, “is to eliminate all race in admissions.”
Read: The Harvard case is about the future of affirmative action
The university has recently added instructions to its Reading Procedures—which teach admissions officers how to review applications—on how race should be used in the process, which is to say, not at all in the personal rating. SFFA charges that the change is evidence that Harvard recognized built-in discrimination against Asian American applicants. Still, the outlines of Harvard’s defense were perhaps laid bare most clearly by Drew Gilpin Faust, the institution’s former president. “There is no place for discrimination of any kind at Harvard,” she said.
The Supreme Court has four decades of precedent on the use of race in admissions. In 1978, in the case of Allan Bakke, a white student who alleged that UC Davis discriminated against him by denying his admission to the medical school, the court agreed that race could be considered as one of many factors in the admissions process. Diversity, Justice Lewis Powell argued, constituted a compelling government interest, and diverse student bodies improved higher education for all students. But this trial strikes at the heart of Justice Powell’s decision. How much diversity is necessary, and is the use of race necessary to achieve that goal?
Right now, only one person can answer that question: Judge Burroughs, who will issue judgement on the case. (This was a bench trial, meaning there was no jury.) She is under no obligation to issue an immediate decision. But when her decision does come down, it could have major implications for the colleges that use race when considering applicants. Yes, there are four decades of precedent, but the Supreme Court looks very different than it did in the time of Bakke, or even Fisher v. the University of Texas, another major affirmative-action case from 2016. And the majority of the court now appears more skeptical of policies based on race.