Lawyers on both sides of the closely watched case brought on behalf of Asian-Americans against Harvard will have a last chance on Wednesday to try to convince a federal judge of their respective positions on affirmative action.
The stakes are evident in the filings made in advance of the hearing, as each side has ramped up warnings about the consequences for universities nationwide and for individual applicants -- of various racial and ethnic backgrounds -- vying for coveted spots at elite schools.
The lawyers, along with US District Judge Allison Burroughs, have said they expect the dispute to eventually reach the Supreme Court for a showdown over the affirmative action practices first endorsed by the justices in 1978 to enhance campus diversity.
Students for Fair Admissions, which brought the pending case, asserts that Harvard stereotypes Asian-Americans as "timid" and "one dimensional" and unlawfully holds them to higher academic and extracurricular standards as the university favors blacks and Latinos under its affirmative action policy.
"At long last, Harvard concedes that being Asian-American has a 'negative effect' on an applicant's 'personal rating,'" the SFFA challengers asserted in a recent filing, extracting phrases from earlier trial testimony, "and that these 'negative associations between Asian-American ethnicity and the personal rating' significantly undermine their chances of admission."
Burroughs "thus faces an unenviable task," SFFA writes. "[She] must find that there is something defective about the character of Asian-American applicants or something defective with Harvard's admissions process."
Harvard, which accused the challengers of "data-mining" and disputed their analysis of how Asian-Americans fare, countered that Students for Fair Admissions "believes favorable consideration for minority applicants" constitutes a "white penalty."
Harvard added that the group "asks this court to forbid Harvard from considering race in the admissions process" despite recognizing "that the consequence would be to reduce the number of African-American and Hispanic students by roughly 1,000 (in a student body of 6,700)."
The real loss, Harvard's lawyers added, would be to "the people of this nation and the promise of opportunity that has long been represented by our institutions of higher education."
Several national interest groups have entered the fray, including the NAACP Legal Defense Fund and the Lawyers' Committee for Civil Rights Under Law, defending Harvard and the value of campus diversity.
The Trump administration, siding with the challengers, filed a "statement of interest" noting that the Justice Department is investigating Harvard's screening processes in a complaint brought to the Department of Education from more than 60 Asian-American organizations.
Before she issues a verdict, Burroughs, an Obama appointee who took up the case shortly after her January 2015 swearing-in, will have to sift through the two sides' factual assertions and their competing views of the respective burdens of proof under Title VI of the 1964 Civil Rights Act, which bars discrimination at schools that receive federal funds.
Students for Fair Admissions was created by conservative activist Edward Blum, who for years has sought white plaintiffs to challenge affirmative action and other racial remedies. The SFFA group is represented by a battery of high-caliber lawyers. They have asserted four specific grounds against Harvard. In addition to the claim that Harvard holds Asian-Americans to a higher standard, they argue that Harvard engages in unlawful racial balancing to keep roughly the same percentage of various racial groups through the years; that Harvard uses race not as a lawful "plus factor" but as defining criteria for admittance; and that the university wrongly bypassed race-neutral options for diversity, such as students' socioeconomic background.
For the most recently admitted class of 2022, Harvard reported that Asian-Americans made up 23% of the class. African-Americans were at about 15% and Latino students at 12%. A category made up mostly of white students constituted 50%.
Harvard's own nationally prominent legal team contends that the evidence from a three-week trial last year showed that Harvard does not intentionally discriminate against Asian-American applicants. They say the school considers race in the way the Supreme Court has allowed for decades.
Harvard's lawyers describe the challengers' "real ambition" as winning reversal of Supreme Court precedent.
"If that day ever comes," they write, "it will ... undercut the considered judgment of educators at Harvard and elsewhere that diversity enhances the campus community and the learning that takes place in classrooms, around the tables in dining halls, and on playing fields. It will leave generations of young Americans less equipped to thrive in confronting the challenges of a complex world."
Setup for Supreme Court
Once Burroughs rules, any appeal would be made to the 1st US Circuit Court of Appeals and then to the Supreme Court.
The touchstone is the 1978 Regents of the University of California v. Bakke, which allowed universities to consider the race of an applicant among many factors but forbade admissions quotas. That case was decided on a 5-4 vote and subsequent rulings upholding affirmative action have similarly come down to a single vote.
The Supreme Court last took up a challenge to racial admissions in 2016, in a case from the University of Texas at Austin, also engineered by Blum, on behalf of white student Abigail Fisher who was rejected for admission to the Austin campus.
Justice Anthony Kennedy cast the decisive vote favoring the University of Texas affirmative action program. He retired in July and has been succeeded by Trump-appointee Justice Brett Kavanaugh, who amassed a more conservative record as an appeals court judge.