继续跟踪哈弗庭审 -- Law360对11/1/2018庭审的报道

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Law360, Boston (November 1, 2018, 7:31 PM EDT) -- A recent change in guidelines Harvard University gives to admissions officers regarding the use of race in assigning an applicant’s “personal rating” was spotlighted in testimony Thursday, as the group suing the school over its affirmative action policies suggested Harvard made the shift in response to the high-profile litigation.

Students for Fair Admissions, an anti-affirmative action organization, claims Harvard unfairly caps the number of Asian-Americans admitted in the interests of diversity and docks them on their subjective personal ratings due to ethnic stereotyping. A lawyer for SFFA pressed the school’s director of admissions on testimony she gave two weeks ago, when she said Harvard had never issued any written guidance about the use of race in assigning personal ratings. The university added such guidance to new admissions procedures just before the trial began.

“Does it say anywhere in the admissions office, in any written form, training material, or any kind of writing, down to a Post-it note on the coffee maker, that race should not be used in the personal rating? Is it written anywhere?” asked SFFA lawyer Adam K. Mortara of Bartlit Beck Herman Palenchar & Scott LLP, repeating a question he’d asked Director of Admissions Marilyn McGrath before she was recalled to the stand Thursday.

McGrath, like several other Harvard admissions officials, testified they never received any written guidance on how to use race in the controversial rating, but that quietly changed mid-September when the school issued new procedures for admissions officers that added more detail to the previously vague personal rating — including a line reading “an applicant's race or ethnicity should not be considered in assigning the personal rating.”

“The reason I gave a different answer is that I had in mind those earlier [instructions for reading applications],” McGrath said Thursday, “which had been the subject of my review for my testimony.”

McGrath’s time at the school dates back prior to a 1990 investigation by the U.S. Department of Education’s Office for Civil Rights, which reviewed and cleared Harvard in a complaint alleging racial discrimination in admissions.

“We have 28 years of admissions officers with no written guidance on how to use race,” Mortara said, referencing the date of the investigation. “And then, a few weeks ago, it was added for the first time?"

McGrath said the guidelines for those who read applications are changed all the time, and some changes are more significant than others. The new guidelines, she said, served to codify a practice that was already in place and understood.

When WilmerHale’s William Lee, counsel for Harvard, questioned McGrath, he highlighted changes in all of the profile ratings in the years since the 2014 lawsuit was filed. The information McGrath reviewed for her earlier testimony, she pointed out, fell within the discovery range of 2012 through 2014, and did not include anything more recent.

Harvard assigns profile ratings in four categories — academic, extracurricular, personal and athletic — to each applicant. SFFA has argued Asian-Americans outdo all other races in academic and extracurricular scores, but are given lower personal scores due to racial bias or stereotyping.

Mortara pointed to another change in the guidelines, which are in effect for the Harvard Class of 2023 that is being considered and admitted this academic year.

“‘It is important to keep in mind that characteristics not always synonymous with extroversion are similarly valued. Applicants who seem to be particularly reflective, insightful, and/or dedicated should receive higher personal ratings as well,’” he said, quoting the new guidelines.

Among its arguments, SFFA says Asian-American applicants are often stereotypically labeled as “quiet” or “introverted.”

“Could a reasonable person looking at this come to the view that this language was designed to make sure admissions officers did not fall prey to implicit bias or racial stereotyping against Asian-Americans?” Mortara asked.

“It’s the kind of thing that we’re always trying to remind ourselves,” McGrath answered.

She parried when pressed on the timing of the change, which emails showed was discussed in July and August.

“What was the most important national news event going on over the summer for the Harvard admissions office?” Mortara asked in obvious reference to the suit.

“I was in Montana,” McGrath replied. “The newspapers are terrible.”

In drafts of the proposed revisions, there was a restriction limiting the use of race to students who made it a part of their personal essays or narratives, rather than simply checking the box. The restriction was removed from the final policy. McGrath said it was an “incorrect instruction” and should have been taken out, but did not know who had removed it.

“Is it possible the person who suggested [removing] it is a lawyer?” Mortara asked, drawing an objection that was sustained.

SFFA rested after recalling McGrath. Harvard’s final witness was former university president Drew Faust, who touted the increase in diversity on the Cambridge, Massachusetts, campus. The school is about 50-50 white to non-white, and the percentage of Asian-American students has jumped from around 3 percent in 1980 to 23 percent in 2018, she testified.

“There is no place for discrimination of any kind at Harvard,” Faust said. “[SFFA’s claims] to me seem completely at odds with the history of Harvard over recent decades … It’s totally against who we are.”

Harvard has also increased the amount of tenured Asian faculty by 50 percent over the past decade and increased financial aid to $200 million per year in an effort to expand diversity of all students, she added.

Closing arguments are set for Friday, the final day of the three-week bench trial before U.S. District Judge Allison D. Burroughs. Much of the testimony has been data-driven, as competing experts offered their takes on whether the numbers show evidence of discrimination in Harvard’s admissions process.

University of California, Berkeley professor David Card, Harvard’s expert, has said his analyses show no bias on the school’s part. Mortara tried to poke holes in Card’s data as he cross-examined him Thursday morning, Card’s third day on the stand.

Adding that he can’t rule anything out statistically, Card acknowledged that it could be possible that Harvard admissions officers are employing racial stereotyping in assigning ratings the economist said show Asian-Americans are less “multidimensional” than their white peers. The coding used to factor parents’ occupations into the mix, a variable SFFA’s expert omitted altogether, is also potentially problematic, Mortara said.

“You code the owner of a small convenience store the same way you would code one of the Koch brothers,” Mortara said. “Do you think Harvard admissions officers would treat those the same way?”

“They would have additional information,” Card replied, “so there would be a way to contextualize that.”

Mortara said that, using Card’s model, the son of the U.S. Secretary of Energy would be coded the same way as the son of a regional sales manager for Dunder Mifflin, the fictional place of employment for the characters in the TV show “The Office.”

Students for Fair Admissions is represented by Adam K. Mortara, J. Scott McBride, John M. Hughes, Katherine L.I. Hacker and Krista J. Perry of Bartlit Beck Herman Palenchar & Scott LLP, William S. Consovoy, Thomas R. McCarthy, Michael H. Park, John Michael Connolly and Patrick Strawbridge of Consovoy McCarthy Park PLLC, and Paul M. Sanford of Burns & Levinson LLP.

Harvard is represented by Seth P. Waxman, Paul R.Q. Wolfson, Daniel Winik, Debo P. Adegbile, William F. Lee, Felicia H. Ellsworth, Andrew S. Dulberg, Elizabeth C. Mooney and Danielle Conley of WilmerHale.

The case is Students for Fair Admissions v. President and Fellows of Harvard College, case number 1:14-cv-14176, in the U.S. District Court for the District of Massachusetts.

--Editing by Adam LoBelia.

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