继续跟踪哈佛庭审 -- Law360对2/13/2019 post trial hearing的报道

Law360, Boston (February 13, 2019, 8:34 PM EST) -- A bias in Harvard University against Asian-American applicants is clearly demonstrated by data, and the group suing the school did not need to subject its students to the scrutiny of testifying in the landmark affirmative action case, a judge heard Wednesday during closing arguments.

When attorneys for the nation's oldest university and the anti-affirmative action group Students for Fair Admissions returned to court more than three months after testimony in the closely watched bench trial concluded, U.S. District Judge Allison D. Burroughs said both sides have hurdles to overcome. Harvard has to deal with data showing Asian-American applicants receive lower scores on the school's subjective and critical "personal rating," while SFFA is asking the judge to decide the question of racial bias without having put a single person who faced any alleged discrimination on the stand.

Adam Mortara of Bartlit Beck Herman Palenchar & Scott LLP, representing SFFA, said the group did not want to expose its students — rejected Asian-American Harvard applicants who say race was a factor in their denial — to the crucible of public backlash he said was experienced by Abigail Fisher when she twice brought her own race bias case against the University of Texas to the U.S. Supreme Court.

"I know no one in this courtroom would have done those kinds of things," Mortara said. "But what would have happened to these young people, somebody would have done something horrible to one of our students."

Mortara told Judge Burroughs that she had said SFFA did not have to produce any testimony from rejected students and therefore decided not to have them "suffer the slings and arrows" of social media and a charged political climate. He instead focused on the statistical case, he said.

Addressing Judge Burroughs' challenge to Harvard's side, university attorney Seth P. Waxman of WilmerHale said the court does not have to find "the" reason Asian-American applicants have, on average, "marginally" lower scores on the personal rating measuring subjective characteristics about their personality while scoring higher, on average, than their peers from other racial groups on objective measures like test scores and extracurriculars.

"The court just has to find that SFFA has failed to prove the cause of this disparity was racial bias," Waxman said, "when one after another, admissions officers testified that they don't consider race" in assigning the personal rating.

Harvard has acknowledged the use of race in admitting students to the selective school but insists it does so in a narrowly tailored way sanctioned by the nation's top court. While there were no SFFA students who testified, Judge Burroughs did hear from a diverse group of students and alumni who took the stand to support their school and testified to how being admitted to Harvard and the school's diversity furthered their education.

"These eight students are living proof that Harvard has a compelling interest and we all have a compelling interest in communities that are diverse and inclusive," WilmerHale's William Lee, also representing Harvard, told the judge Wednesday.

Attorneys representing the Harvard students and organizations also gave closing arguments after Harvard's turn and before SFFA's rebuttal.

Mortara sought to hammer home the statistical case he claimed Harvard wants to ignore, repeatedly saying "two plus two equals five" in an effort to show that the school is not coming to a logical conclusion about what he argues the numbers show: that Harvard admissions officers unfairly dock Asian-American applicants on the personal rating due to stereotypes that view them as "one-dimensional" or "quiet."

"Perhaps the most important undisputed fact is that Asian-Americans receive statistically significant lower personal ratings from Harvard, lower than whites, lower than Hispanics, lower the African-Americans," he said. "Harvard hasn't even tried to offer a rationale for why African-Americans or Hispanics have better personal qualities than Asian-Americans, because they don't, skin color does not determine their personal qualities."

The case drew substantial public attention for the three weeks it occupied the waterfront Boston courthouse, and that was the case again Wednesday. Dozens of people rushed into the courtroom when the morning session of a criminal trial against former Insys Therapeutics Inc. executives had wrapped up. Some spectators had to lean against a wall, sit on the floor or watch the hearing from an overflow courtroom.

Ed Blum, the anti-affirmative action legal strategist behind the suit who brought the Fisher cases to the Supreme Court, sat in the front row.

In November, Blum told Law360 that, unlike in Fisher, the pleadings in this case asked the court to take up the question of whether race should be considered at all when it comes to college admissions. It's a question Blum said could land the matter before the Supreme Court regardless of how Judge Burroughs rules.

Harvard has argued, and its lawyers reiterated Wednesday, that there are no "race-blind" alternatives that would give the school the diversity and quality it desires in its student body.

Both sides spoke to the wide-ranging implications of Judge Burroughs' decision. Mortara said "an entire community of Americans, millions of them," await her answer as Lee said the issues before the court are "critically important to the future of higher education."

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 amici students are represented by Oren M. Sellstrom, Genevieve Bonadies Torres, Kristen Clarke, Jon M. Greenbaum and Brenda Shum of the Lawyers' Committee for Civil Rights, Nicole K. Ochi of Asian Americans Advancing Justice and Lawrence Culleen, Nancy Perkins, Steven Mayer and Emma Dinan of Arnold & Porter.

The amici organizations are represented by Cara McClellan, Earl A. Kirkland III, Janai S. Nelson, Jennifer A. Holmes, Jin Hee Lee, Michaele N. Turnage Young, Rachel M. Kleinman, Samuel Spital and Sherrilyn A. Ifill of the NAACP Legal Defense and Educational Fund Inc. and Kathryn Rebecca Cook and Kenneth N. Thayer of Sugarman Rogers Barshak & Cohen PC.

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 Jack Karp.

Francine

去年十一月庭审最后一天，Judge Burroughs就说明年2月双方还需要再辩一次。Judge很谨慎，知道这个案子会到Circuit Court 去appeal, 还会到US Supreme Court去，这是最后的develop a record的机会。

以下是再辩的梗概。

Students Needn't Testify To Show Bias At Harvard, Judge Told