A federal court case alleging Harvard University discriminates against Asian-American applicants gets underway Monday in Boston.
While the case focuses on Harvard, it could have big consequences for other selective colleges that are committed to diversity and have similar admissions practices. At stake is 40 years of legal precedent that the Constitution allows 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 that the university holds Asian-American applicants to higher standards by ranking them lower on intangibles like courage, kindness and leadership.
"Harvard is systemically saying that Asian candidates are not likeable and don't have good personalities by orders of magnitudes less than candidates of any other ethnic group, which is nothing but racist,” said Lee Cheng, a lawyer the Asian American Legal Foundation, which is supporting the lawsuit.
“It perpetuates, feeds and creates stereotypes," said Cheng, who is Chinese American and graduated from Harvard in 1993.
Cheng charged that Harvard’s admissions process upholds negative stereotypes that Asian-Americans just do well in math and standardized tests.
Blum and Students for Fair Admissions told WGBH News that none of the anonymous Asian-American plaintiffs who claim they were unfairly denied admission to Harvard will testify. Still, Cheng thinks the group has a chance to win its case.
"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 said. “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 carefully done.
Harvard has denied the charges, saying Asian-Americans now account for 23 percent of all admitted students.
At a higher education event in Detroit last month, Harvard's new president Larry Bacow defended the school's race-conscious admissions process.
"Nobody wants to be judged on their numbers alone," Bacow said.
A WGBH News poll conducted in August found a vast majority of Americans — 72 percent — disagree with the consideration of race in college admissions. At the same time, 86 percent said they value racial and ethnic diversity on campus.
“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," Bacow said.
While there is a lot of attention on race, ethnicity and the discrimination lawsuit, Bacow dismissed the idea that eliminating legacy admissions, which historically have benefited wealthy white students, would increase diversity at Harvard.
"The legacy pool is now an exceedingly diverse pool," Bacow said.
Ted Shaw, director of the Center for Civil Rights at the University of North Carolina's Law School, disputed that idea. "These institutions, over the years, have been bastions of the privileged," he said.
In the past, Shaw said, opponents of considering race in admissions have gone after top public institutions like the University of Texas and the University of Michigan.
He called the lawsuit against Harvard an attempt to broaden that attack to private colleges that are selective.
"This is a very important moment because the balance of the [Supreme] Court is in play," he said, "and so we can't assume that the results that have obtained in previous cases are going to continue."
Justice Anthony Kennedy was the key swing vote in the 2016 Texas decision that preserved race-conscious admissions. Recently-confirmed Justice Brett Kavanaugh replaced him.
Last month, the Trump administration announced the Justice Department was supporting 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 seated in 2015, will preside over the trial. She is the newest member of the federal bench at the Moakley Courthouse in the Seaport district. This will be her first trial without a jury.
William Lee, a partner at WilmerHale in Boston, will represent Harvard. A Chinese-American, Lee was the first Asian-American to lead a major American law firm. He is also a member of the Harvard Corporation, the university’s governing board.
On the other side, Students for Fair Admissions will be represented by attorneys from Consovoy McCarthy Park, a law firm with offices in Boston.
Last week, Burroughs granted Harvard students and alumni the ability to testify and make the case for racial-ethnic diversity. Harvard's dean of admissions, William Fitzsimmons, and former president Drew Faust will also take the stand. Burroughs rejected a request from Harvard to call Blum as a witness.
Testimony is expected to last two to three weeks. Legal experts predict the case will eventually reach the Supreme Court.