With a decision that The Boston Globe called “a defiant defense of affirmative action in higher education,” a WilmerHale team achieved a victory on all counts for Harvard University in a high-profile challenge to the use of race in its undergraduate admissions process.
Judge Allison Burroughs of the US District Court for the District of Massachusetts issued her decision earlier this month, nearly five years after the suit was filed and eleven months after the conclusion of a three-week trial. Her landmark decision concluded that Harvard does not unlawfully discriminate against Asian Americans and that Harvard’s use of race is narrowly tailored to achieve its compelling interest in diversity.
Students who attend Harvard, wrote Judge Burroughs, “will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences.” The court concluded: “race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.”
WilmerHale Partners Danielle Conley, Felicia Ellsworth, William Lee and Seth Waxman led the team that represented Harvard at trial, defending the university against claims filed by an organization called Students for Fair Admissions, Inc. (SFFA), which seeks to eliminate the consideration of race in the admissions process.
During the trial, which attracted intense media attention, the WilmerHale team presented testimony from 13 current and former Harvard employees, including former Harvard University President Drew Faust, and expert witnesses, including former Brown University President Ruth Simmons. The trial also featured testimony from eight Harvard students of diverse backgrounds—five current undergraduates and three alumni—who spoke powerfully about the importance of diversity on campus.
SFFA, by contrast, put up no fact witnesses and presented only the testimony of its two expert witnesses. SFFA’s failure to offer testimony or evidence reflecting a single applicant purportedly harmed by Harvard’s consideration of race was conspicuous, a point Judge Burroughs made in her decision.
Mr. Lee notes that the case was designed to strike at the heart of affirmative action: “Harvard’s process has been held up as a model for a good admissions program in past legal challenges to affirmative action, which is one reason that SFFA targeted it. We are proud to have offered such a strong defense of Harvard’s program not just for our client, but also because of its broader significance for higher education in this country.”
SFFA has filed a notice of appeal, and WilmerHale will continue to represent Harvard as the case proceeds.
The WilmerHale team also included Partners Debo Adegbile, Robert Cultice, Joseph Mueller and Paul Wolfson; Counsel Brittany Amadi, Andrew Dulberg, Sarah Frazier and Elizabeth Mooney; Senior Associates Eric Hawkins, Michelle Liszt Sandals, Greg Schmidt and Denise Tsai; and Associate Alison Burton.