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When attorneys for Harvard and anti-affirmative action group Students for Fair Admissions returned to the courthouse last Wednesday to present closing arguments in a high-profile trial centered on the College's alleged discrimination against Asian-American applicants, they decided to focus on the facts.
Wednesday’s arguments — which fixated heavily on statistical analysis of admissions data, particularly applicants’ personal ratings — are indicative of the significance data will have if the case proceeds to an appeals, according to multiple legal experts. Experts have said it is likely the case will be appealed regardless of federal Judge Allison D. Burroughs’ ruling.
Statistics were also a central feature during the main three-week trial that began in mid-October. Both Harvard and SFFA hired experts to conduct statistical analyses of admissions data. SFFA’s expert’s findings revealed evidence of bias, while Harvard’s did not.
Michael J. Gerhardt, a professor of constitutional law at the University of North Carolina, Chapel Hill, wrote that statistics were central to the post-trial arguments because the factual record for any future appeal is established in the district court and will guide future judges’ legal interpretations.
“Trial courts are designed to handle the taking of evidence and factual disputes, while appellate courts consider whether trial courts got the law right,” he wrote in an email. “This means that parties should be aggressively trying to put into the record the facts that support the violations of the law they have identified and the harms hurting the their clients from those violations.”
If the case is appealed, the higher court will not overturn any factual findings set earlier on unless they are “clearly erroneous” and determinative in the interpretation of law, Gerhardt wrote.
Michael J. Klarman, a professor at Harvard Law School, also indicated that appeals courts would be very reluctant to reverse the findings of fact Burroughs establishes.
“The trial judge will make findings as to whether Harvard discriminates against [Asian Americans],” he wrote in an email. “Such findings would be difficult, but not impossible, to reverse on appeal.”
The lawsuit’s heavy reliance on statistical analysis and data interpretation places a lot of weight on Burroughs ruling, regardless of how far an appeal effort goes.
“This could be a case where the district court’s decision is by far the most important part of the case,” said Michael W. McConnell, the director of Stanford University’s constitutional law center.
While legal experts agree that the case will be appealed regardless of who wins, many said it is impossible to predict whether an appeals court would be willing to take up the case past the district level.
“Typically a very small percentage of appeals are successful,” said Vinay Harpalani, a law professor at the University of Savannah. “This case may be a little different, though. It is looking at a hot button issue where there is a good amount of disagreement on what the law means.”
That disagreement concerns Harvard being a private university subject to different constitutional protections than public universities that have previously had the policies challenged. Plaintiffs in Grutter v. Bollinger and Fisher v. University of Texas — previous high-profile affirmative action cases — relied heavily on charging that the public institutions infringed on the Constitution’s Equal Protection Clause, which does not apply to private universities.
“Harvard is not bound by the Equal Protection Clause,” UNC Law Professor Theodore M. Shaw said. “Nonetheless, there are statutes that reach private institutes, including Title VI under the Civil Rights Act of 1964.”
Title VI prohibits discrimination on the basis of race, color, or national origin in any program or activity that, like Harvard, receives federal funding.
“Title VI can reach private actors unequivocally, there is no doubt about it,” Harpalani said. “I think SFFA is trying to completely redefine intentional discrimination in terms of Title VI, a novel development in the law...What the standard would be under Title VI is not established at all when it comes to discriminatory intent versus disparate impact.”
Adam K. Mortara, the lead attorney for SFFA, cited the Civil Rights Act when building his argument against affirmative action, citing Teamsters v. United States, an employment discrimination suit from 1977. Mortara has argued that the Teamsters case — which ruled that statistics are sufficient to prove racial discrimination — means “statistics alone” can prove that Harvard’s admissions policies are biased without evidence of intentional discrimination.
Harpalani said, however, that even if this legal interpretation was accepted, he does not believe SFFA’s statistics are sufficient evidence.
“If you wanted to do it off statistics alone, which is what SFFA is trying to do, it would have to take really stark statistics, much more impactful than what SFFA has now,” Harpalani said.
Harvard’s attorneys have argued that another suit, Arlington Heights v. Metropolitan Housing Corp., is the applicable precedent in this case. That case ruled that plaintiffs must show proof of intentional discrimination, which is “near impossible” to prove, according to Harpalani.
Under that precedent, anecdotal evidence raised in post-trial arguments may be used to show intent alongside the statistics. Attorneys dedicated some of their time in last week’s hearing to reestablishing or disputing the existence of such evidence.
“Even under Arlington Heights, there’s significant circumstantial evidence,” Mortara argued last Wednesday.
Harvard attorneys disagreed.
“At the end of the day, under Teamsters or Arlington Heights, the court still has to resolve the question whether Harvard intended to discriminate, and it still has to do that considering all the evidence, non-statistical and statistical,” Seth P. Waxman, one of Harvard’s lawyers, said in his closing argument.
Burroughs is expected to issue her decision in the coming months, but the case’s future in appellate courts remains uncertain.
“It is too soon to make any judgments,” Shaw said. “Trying to figure out where this case will go is a fool’s errand.”
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