A high-stakes trial kicked off this week in federal court in Boston. A conservative group, Students for Fair Admissions, has accused Harvard University of engaging in an admissions process that systematically discriminates against Asian-American applicants. WGBH's Morning Edition anchor Joe Mathieu spoke about the trial with WGBH News legal analyst and Northeastern law professor Daniel Medwed. This transcript has been edited for clarity.
Joe Mathieu: So first of all, what is the actual law about affirmative action? Let's go back to the beginning here. When it comes to admissions, what is the precise claim that's being raised?
Daniel Medwed: For over 40 years, since this landmark case in 1978 called Bakke, the Supreme Court has honed its affirmative action jurisprudence around the idea that race should be one factor among many in a holistic admissions process that's designed to create a robust and diverse academic community. The idea is that you can't have racial quotas, specific quotas, but you can try to create this community of athletes, and artists, and urban, and rural, and rich, and poor, and yes, people from different racial and ethnic backgrounds. So the key issue in this particular challenge, is that it comes from a conservative activist, Edward Blum, who's arguing that Harvard's unique brand of this holistic process systematically discriminates against Asian-American applicants by consistently underscoring them on certain subjective criteria related to personality: courage, and leadership, and so on, with the effect that it creates a de facto quota. Now what's very unusual about this case, most challenges to affirmative action policies come from aggrieved white applicants who were denied admission. Here, it's a community of color: Asian Americans who are the alleged recipients of the harm.
Mathieu: Another unusual feature is the fact that this trial is being heard before a judge, as opposed to a jury. How do you think that will change the strategy for both sides?
Medwed: That's a really important question. The general rule of thumb is that before a bench trial — that's what the term is for a judge trial — in a bench trial you want to avoid grandstanding, avoid hyperbole, avoid appeals to passion and emotion, because judges presumably won't be swayed by that rhetoric. They want a more dispassionate presentation. So I think that probably here, both sides will be very methodical and dry, focus on the data, and put forth a litany of experts and leaders in the field of higher ed. Among the witnesses on the list are Drew Faust, the former president of Harvard, and Ruth Simmons, the first African-American president of an Ivy League school. Now notably, neither side is going to put a student on the stand, though the judge in the case, Allison Burrows, has allowed a group of Harvard alumni and students to testify on their own.
Mathieu: We're talking with WGBH News legal analyst Daniel Medwed. You know everyone in this business, right? Do you know this judge?
Medwed: Yes. Allison Burrows is very well-regarded. She's a former federal prosecutor and partner at a big Boston law firm, who was appointed in 2014 by President Obama. She's perhaps best known for being one of a handful of judges who, back in January 2017, issued a temporary restraining order to stop the Trump travel ban that had denied entrance for people from seven majority Muslim countries. Now that doesn't necessarily have any bearing on her views of affirmative action, let alone how she'll tackle this case, but it's worth noting.
Mathieu: And a lot of people remember that.
Mathieu: A lot of people also think this case is going to the Supreme Court. I don't know if you feel that way, but also, how do you think this turns out in general?
Medwed: I'm not sure. On the one hand, a lot of conservatives are chomping at the bit to get another shot at affirmative action, including some of the justices, and of course the Trump administration. The Department of Justice has even filed a statement of interest in this case on behalf of Edward Blum, the plaintiffs here. But on the other hand, it takes four justices to grant review of a case like this, which has to wind its way up through the system, and I'm not sure that many judges have a stomach to tackle this issue so soon after the most recent Supreme Court case on affirmative action. It was just in 2016 when the Supreme Court upheld, in the Fisher case, the University of Texas' holistic process. However, and here's really the rub — if this case gets up to the Supreme Court, I do fear that affirmative action is in jeopardy, because Anthony Kennedy was the longtime swing vote on this issue. He authored the majority opinion, not only in the 2016 Fisher case, but in the Grutter opinion that preceded it. With Brett Kavanaugh here, I don't know if affirmative action is going to stay in its current form.