This week, the U.S. Court of Appeals for the First Circuit heard argument in the case against Harvard University brought by Students for Fair Admissions. The plaintiffs allege that Harvard’s use of racial preferences results in discrimination against Asian-American applicants. The liberal district court judge who tried the case disagreed. She found for Harvard.
You can listen to the oral argument here.
The plaintiff-appellants were represented by William Consovoy. Assistant U.S. Attorney General Eric Dreiband, representing the United States, joined Consovoy in arguing for reversal of the district court’s decision in favor of Harvard.
Both argued very well. You can get a good flavor for Consovoy’s arguments by listening to his opening lines, beginning at about 0:45 and ending at about 2:00, plus the end of his initial presentation, beginning at about 16:20, when he hit a question from a liberal judge out of the park (she ended up cutting him off). Consovoy’s rebuttal is also well worth listening to. It begins at around the 1:13:30 mark.
Eric’s argument commences at around 18:00. He did a fine job distinguishing Harvard’s case from cases in which the Supreme Court upheld racial preferences by the University of Michigan (Grutter) and the University of Texas (Fisher).
Eric also pointed out that Harvard racially balances its classes through the use of subjective personal characteristics criteria, which somehow find, year after year, that Asian-American applicants have less “courage” and less “integrity” than other racial groups of applicants. This highlights why, as Eric reminded the court at the conclusion of his argument, the Supreme Court has admonished that the use of race in decisionmaking processes is “odious to a free people.”
Harvard was represented by Seth Waxman, the former Solicitor General of the United States. Waxman argued ably, relying mostly on technical points. He was uninterrupted except by softball questions until the end of his argument. At that point (around 52:50), Chief Judge Howard asked him about Harvard’s efforts to achieve a particular racial balance, or “yield.”
For what it’s worth, I think Waxman’s response was weak. Consovoy must have thought so too, because he led off his rebuttal by driving the point home.
The panel consisted of Chief Judge Jeffrey Howard (appointed by Bush 43), Judge Juan Torruella (appointed by Reagan), and Judge Sandra Lynch (appointed by Clinton). Lynch is a liberal who advocated for Harvard throughout the proceeding. Torruella, age 87, asked no questions of substance. He’s a left of center judge and a probable vote for Harvard.
Chief Judge Howard is right of center. He did not tip his hand during oral argument. However, his question about “racial yield” offers some hope that he will dissent from what I expect to be a decision affirming the district court’s ruling in favor of Harvard.
A well-reasoned dissent might be helpful in the quest to have this case heard by the Supreme Court, where it belongs.