Federal Appeals Court Questions Asian-American Bias Claims Against Harvard

BOSTON — A federal appeals court on Wednesday appeared skeptical of arguments that Harvard discriminates against Asian-American applicants, a claim made in a closely-watched lawsuit challenging the use of race as a factor in U.S. college admissions.

Members of a three-judge 1st U.S. Circuit Court of Appeals panel in Boston questioned why it should conclude a trial judge wrongly rejected the claims by Students for Fair Admissions (SFFA), a nonprofit founded by anti-affirmative action activist Edward Blum.

Conservatives have long criticized affirmative action. Legal experts say the case could go to the U.S. Supreme Court, giving its conservative majority a chance to reconsider past decisions that allowed race to be considered as a factor in admissions.

Blum’s group, which counts Asian-American applicants as members and has President Donald Trump administration’s support, contends the Ivy League school engaged in impermissible “racial balancing” to benefit other preferred minority groups, such as Blacks and Hispanics.

SFFA lawyer William Consovoy argued that despite high academic scores, Asian Americans were admitted a lower rates than other groups because of racial stereotyping by admissions officers who gave them low “personal” rating scores.

Consovoy asked the court to consider how it would evaluate such low scores if they were given to well-qualified Black applicants for police or firefighting jobs.

“I think this court would be skeptical or concerned that this was discrimination and not that African American firefighters or police officers actually had worse personal qualities,” he said.

A U.S. Justice Department lawyer, Eric Dreiband, argued that Harvard in adopting its admissions system gave “no serious consideration of race-neutral alternatives.”

But their arguments faced questions from panelists including U.S. Circuit Judge Juan Torruella, who asked “what is the evidence of racial profiling here?”

Seth Waxman, Harvard’s lawyer, argued that a “mountain of evidence” showed it did not intentionally discriminate against Asian Americans.

He urged the court to uphold U.S. District Judge Allison Burroughs, who last year ruled Harvard had no “workable and available race-neutral alternatives” to ensure a diverse student body.

U.S. Circuit Judge Sandra Lynch during the arguments pointed to past Supreme Court rulings that allow universities to consider race as one factor to remedy disadvantages minority students have faced because of racial prejudice.

“Harvard can in fact consider other things than merely class ranking and the academic achievements of the Asian-American applicants,” she said.