the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make give their attendance and they shall be heard god save the united states of america and this honorable court court isn't session today's case will be called as previously announced in the times will be as a lot of the counsel that case today is students for fair admissions incorporated versus president fellows of harvard appeal number one  good afternoon counsel i'm chief judge howard in with me this afternoon judge to acquaint and judge lynch mr constant or you may begin when you're ready thank you your honor good afternoon  appellant students repair missions with the court permission i'd ask to reserve five minutes for rebuttal yes i think your honor the central issue in this appeal as it has been from the beginning of this case is whether harvard discriminate against asian american applicants by in among other ways imposing a penalty on them in the highly subjective personal rating after nearly six years of litigation and healing the trial the district court was concluded that these discrepancies could not be fully in satisfactorily explained judgment should have been rendered against harvard for this reason alone after all one of the chief purposes of strict scrutiny is to ensure that whistle stereotyping and other forms of elicit bias do not infiltrate a system of racial preferences overt was unable to carry that hadn't burden in this case but harvard system by way of strict scrutiny for other reasons as well counsel just before you get there under the intentional discrimination count if we should conclude that your clients carry the burden your clients have the burden on that count have you preserved an argument that you have carry that burden once an inference of discrimination is created even in cases where the plain of carries the burden throughout the burden does then switch is happening titles that in cases all the time and harder would still have to disprove  of any intentional discrimination so your honor we think that when we talk about intentional discrimination discrimination here what we're talking about is evidence of racial stereotyping no different than the kind of heart of your claim i'm a little confused about exactly what your intentional discrimination claim is and let's just start with the fact that disparate impact is not an accepted doctrine under title six ok we believe the centerpiece of our intentional discrimination can't claim is wishful stereotyping that is a is simply misunderstanding the nature of a bit of a particular legal groups characteristics and generalizing about them that is or is a racial profiling the evidence of racial stereotyping your honor comes in multiple forms one we have evidence from it from the office of civil rights dating back all the way to the one thousand nine hundred and eighty s in which harvard was found to have engaged in these kinds of practices and they never took corrective action  nd their own office of intention institutional research found evidence of a penalty against asian americans in this personal rating rd and i think this is really important iran or after this litigation ensued two important things happened one remarkably the the admissions rates for asian americans jumped dramatically right on the heels of violence of this lawsuit after it had been stagnant for nearly a decade but even more important came out during a trial that harvard for the st time in decades altered its own procedures to account as democrats said in their own testimony when she was recalled to the stand out of concerns for stereotyping and even american applicants if this were any other kind district court because harvard uses with a system of racial preferences and because race can x can apply to any applicant and you can find that on page thirteen of the district court's opinion which is in the appendix this case is no different than fisher it's for the court to decide but we we are at a palauan as been preserved and it's at its before this court and under so when we go back to the to the sort of the beginning just so i can make sure we're all understanding our argument other statistical evidence in this case and the district quite a have actually found that harbored statistical model was the more reliable one so  purposes of appeal we are willing to accept that with one issue which is the inclusion of the person operating elevator or found was that both the one with the personal rating and the one without it were credible and probative and should well i'm sorry but i think we circled back around to my if there is no intentional discrimination why does strix scrutiny apply i think the you come before how you measure the evidence the st thing the court ought to do in a respectful opinion is a term in what the appropriate standard of review is and then measure the evidence against it so once your scrutiny applies harvard bears the burden of disabusing this court of the notion that there is intentional discrimination so as the supreme court said in a way enterprise's case when he was applying strict scrutiny if the evidence is unclear if it's a cause if the if the if the defendant can't dispel an inference or a concern about this combination when strict scrutiny applies the defensive loses they don't win when i just report this case as if it really satisfactorily explain why asian americans are faring so poorly in this personal rating and harvard has no explanation either this is why the different chords ultimately ended up speculating that there were innocent reasons that can't be found in the record and try to blame school support ratings and other evidence as the culprit for what's obvious from the record the problem with that is the sweep of what ratings are in the model and this argument that the actual recommendation letters themselves are somehow the culprit is pure evidence free speculation they won't reviewed they weren't studied they won't admit it in a statistical significant way and when we're talking about racial preferences this is this is all law with respect all over has to show that it's not discriminating and it just failed to do so in this case and in addition to that your honor putting aside the claim of intentional discrimination against asian americans there's a serious our expert show the harvard could increase overall racial diversity increase socioeconomic diversity and suffer no adverse consequences academically or any other way by eliminating racial preferences eliminating excuse me the legacy preferences and getting a greater boost to socio economic diversity we believe and counsel thank you for that but  to the question of the inclusion or exclamation of the personal rating in the district court held that there were cardless of whether their personal rating is included or not the average marginal effect is close to zero and that it varied by admissions cycle and it was not always negative in each admission cycle so i know that your overall position is one ought to be looking at this oh grow longer time span and not just year by year but what do we do with the fact that there are different results in different years so are we going to court to just look at the data the same way harvard's own expert did and that's not asking the court to pool with the data the way our expert did and which the district court did not agree with what that what what harvard's own expert did was look at the data and make an what's called an average marginal effect across a six year cycle and the reason why you do that is because when you get into individual cycles the doing that the you know the data and this is the work of experts becomes noisy because the variables are our extensive but the data inputs get fact harvard's own expert testified about none of them and i believe the record shows he only review five files so whether this is preponderance or or strict scrutiny these are these are still a lack of evidence to overcome  and at the end of the day your honor i guess i would step back i believe my time is has expired or is about to but i would just something this way your honor if the court just takes the district court's record as it finds it and as system is intentionally discriminatory because it uses subjective criteria and i assume you would say the personal rating is a we're not arguing that harvard syphilis discriminatory because it uses objective criteria we're saying it is more susceptible to stereotyping and by as infiltrating it system because it uses subjective criteria i think that's not only true from the case law i think that's just common sense it is one employment case and a group of applicants were better on all the objective criteria say were you african american police officers for example from some of the boston cases  african american firefighters or police officers actually had worst personal qualities they were less effervescent that they were yes it's thank you council all right thank you we'll hear  frequently consult the daily reports the kept track of that data racial and ethnic composition yes your honor and in god or the law school did take to pay attention to the numbers they had these the daily reports that monitor but there was no indication  that the law school at the university of michigan was using their or their tracking or their monitoring of something and some attention numbers by comparing it to the prior year what we have here is unlike roger is we have a constant monitoring  evidence to regulate from harvard smith committee and so as so look at race neutral chung this whether or not it could utilize race neutral terms what that committee concluded was that none were acceptable because harvard wants to maintain whites which is what i understand the plaintiffs to be arguing but with respect to african american and or hispanic applicants if you are making that argument that is not an argument presented by the plaintiffs in this case and why didn't i do as the united states to present  differing case to us then not presented by the plaintiffs not you know i do i do not believe we are making a different argument certainly part of the argument the plaintiffs are making here especially with respect to the songwriting is that the person reading disadvantage is asian american applicants relative to white applicants certainly we acknowledge that that is part of a claim but there is nothing nothing here at the suggest that that is the only  you can speak to his claim but we understand the claim to be that asian american applicants are until burdened by the expansive and pervasive use of race that entails a look at the full spectrum of what is going on here what we see for example you are right out of harvard's own acknowledgement that asian american applicants think analyze at a rate from their own expert dr article levon point one percent relative to other racial groups at the same time we see the use of racial kids being used with other racial minority groups but not with respect to asian americans and so overall then in addition we have forty years of data as i said in which asian american applicants year over year over year are being knitted at a rate lower lower than their presence in the applicant pool and that is completely unlike anything that was an issue for example in the water case with the missions numbers were very different than they were all racial groups including asians with lower numbers is different than what we saw in the supreme court's decision fisher whether americans who are being admitted to harvard college your year and as mr consequence said we have to very suspicious and entirely subjective use of a personal rating in which harvard admissions officers are sitting in their offices assigning ratings based on  criteria like courage and integrity and somehow in some stereosonic splendid way every year over the six year data period we have here the asian american applicants are being weighted as having less college less integrity despite the fact that they are by the other metrics academic performance next curricular is the highest mr drive and if you're interested in accomplishing diversity in a way which is consistent with the use of race and at least thus far the supreme court has said that this acceptable your argument seems to come down to harvard  think your honor i think the university of texas case involving the fisher plight of this instructive in that case the university of texas considered race as one factor of a sub factor of a multi factor test and decisions were made by admissions officers who did not know the race of the applicants in addition that was only race which we consider for about a quarter of the applicant pool seventy five percent of applicants were admitted based on race neutral process when what the supreme court has said  fisher is that certainly universities in higher education can consider race in a mayor a way but universities much when they do that are subject to strict scrutiny and so what we have here on mike what we have in the fisher case is of rice that disadvantages asian american applicants to harvard college that is very different very and nothing and his share too says you can only articles once in the admission process and then at the very end but the way i read your brief you seem to be presenting that argument to us instead you are presenting an argument that they considered it too many times is this is a numeric thing the district court rejected your argument that when they accepted by the district court as narrow tailoring and consideration other alternatives and a concern siddur the model put forth by the plaintiffs and concluded if that out were used there would be a very sharp decline in the number of african american and hispanic students who were at that that's what their record sharers so why did that why isn't harvard's rejection out those other alternatives sufficient to show that maintain a racial composition the class that alex is the class out with in every year year over year over year and at the same time though it is injuring asian american applicants to harvard college because they are being admitted in numbers below which they would otherwise be a bit now with respect to the court's question of other racial minorities there are other ways at harvard to do it the university of texas for example came up with a intentional discrimination in the personal rating secondly the relevant burden of proof who bears it and what it is with respect to cow was in the claim of intentional discrimination as to counts twenty three  to talk about this notion of stereotyping and implicit bias and i hope i'll be able to get to all of them if i do i'll address the grutter in fisher points that mr dr and issued of course really  principle here to answer any questions that the court has i mean the one thing that is remarkable on this case is that the trial court may you know hurt the testimony of twenty five witnesses she reviewed hundreds in detail hundreds of exhibits and she issued eighty pages of detailed findings of fact that explain why harvard does not intentionally discriminate against asian americans garbus of what burden is placed on who and also explained why harvard editions policies wind up exactly what the requirements that the supreme court has articulated for consideration of race now as to taking st the issue of birth the question of burden in this case didn't exist in this didn't exist at all throughout all the pretrial proceedings through the government's opening statements through the government's closing argument it is now in its post trial brief and out appeal arguing so far as i can tell out of whole cloth that because with because harvard places a accords a tip for some very hollow highly qualified applicants from under represented minorities which includes by the way many asian american ethnicities that that that somehow means that the claim that fuse of the whites harvard is intentionally discriminating against asian american applicants harvard bears the burden of proving that it is not intentional that strict strewed need applies to the intentional discrimination claim and i have not quite understood why that should be so and indeed i believe judge to re is earlier question went to a similar point so you would say they have to show intentional before and they get the advantage of strict scrutiny as to that point is that correct yes they have to show on count one alleging intentional discrimination against asian americans of whites numbering on that fear is in fact disparate treatment of asian americans viz if you whites and if so that it results from quote purposeful discrimination it is plainly their burden to establish those two predicates the district court found on the basis of a mountain of evidence that they didn't establish i fear and that's why the court found that it really doesn't matter whether you put a burden on harvard to provide an explanation of her strict scrutiny or not the court found that we prevailed either way i think and i do agree with your daughter i can't well i have read it really read the district court's opinion on this many many times and i'm not sure i really understand what her reasoning is i think what she was saying is that with respect to counts two dollars and four dollars under the strict an element of narrow tailoring when considering a program of using race as a plus factor to promote diversity one of the things that the defendant has to prove is that using a plus factor for some members of some under represented minorities does not quote on duly harm any members of the racial ethnic groups that do not receive the benefit of that and the test we know from roger is for under harm is whether a school quote is rated as a plus factor in the context of individual lives consideration if so the court continue to reject it affleck it will not have been foreclosed from all consideration for that seat simply because he was not the right color or used the wrong and the district court found as the evidence compelled the conclusion that harvard in fact has an individualized process and this this goes also to the the government's argument about using race has more than a plus factor in which it has the court found in the evidence showed every candidate is a valuated on the basis of the full application and all the various attributes that harvard values and every applicant is competing for every seat in harvard one thousand six hundred seat class in every instance and so i think what the court basically did was to say i don't apply in the und burden standard i'm also going to look at the personal rating which i find is not evidence of discrimination i think that step was wrong because the dispute about the personal rating goes only to count  one and i do want to say you know perhaps more than you want to hear about the personal rating but let me st just dispense with this notion that you know that my brother mr cons of oist that which is this case was always about racial stereotyping that we've heard an incessant i'm out in their briefs about the fact that what really went on here was implicit bias implicit bias what's really at work and that's what professor our city  let's be very clear about this the whole notion of implicit bias not a single witness s s if they didn't question a single fact but just didn't present a single fact witness who testified at all about implicit bias they didn't put on an expert who would testify about what what do we mean by implicit bias in this context and how does why is it reasonable to conclude that it's infecting the process in so far as there was testimony about mean this is something that their lawyers started coming up with in the very last week of trial after a churned out that although they proclaimed in their opening statement that they were going to call h witnesses who would acknowledge they were using that they were essentially putting it on the scale it gets asian american applicants and none of that transpired we started hearing the days leading up to the closing argument seven law on there has been some recognition of what's called the cat's paw theory which is let's say the high school guidance counselors who is who recommendation  very much to the personal rating if rick knew there was systemic bias in those guidance counselors and none in the last just sort of automatically adopted those stereotypical view would have harbored the chargeable with that now i know the district court said there is no such evidence and i don't find that harbored admission officers themselves contained any implicit bias but your brother does suggest something to this effect yes i was actually somewhat dismayed to hear that suggestion i mean as to your honor's direct question would it be relevant it would if it were true and the district judge found that it was not true in finding that she credit the testimony of every admissions officer that they had never engaged in or seen any evidence of racial bias implicit or explicit and we're talking after all i mean i think it's useful to put the personal rating in context here every single applicant candidacy is decided following a on bonk meeting of forty eight missions officers it and cited faculty who are looking not at what you know a st reader of the new file puts them out as a personal rating or an academic rating as a form of trivia to determine out of the forty thousand applications which are the you know thirty thousand we should actually be talking about they the testimony was unanimous that what they are doing is they have the whole file in front of them they all listen to each other's comments they read all of the essays the personal statements the letters of recommendation that narrative analyses of either alumni interviewers or the staff interview to interview the kids if the narrative of recommendations provided by the guidance counselor and the teacher and so the only way if any of that would be if it existed you only way any of that would be relevant if it is in fact it had a statistically significant effect on admissions outcomes which the court found even taking professor our city aka nose extraordinarily weak model without the personal rating nonetheless she found that just looking at the statistical of live evidence awo quote the model doesn't demonstrate any intent by admissions officers to discriminate based  racial identity now my friend on the other side challenged me to identify some place in the record where there was a basis to conclude that the  school support rating in fact demonstrated a differential evaluation of applicants based on the many non academic factors that  harvard at harvard considers heavily in the process professor carter did exactly that and the district court recognized that at page six thousand and eighty two of the records he shows what he did is he looked at school support ratings that numerical school support rating by the separated out by the academic rating in other words what was the school support rating for applicants of similar academic ability and found and it's demonstrated here that for every single level for whatever reason white applicants scored better asian american applicants and the notion fance by my friend on the other side that none of this matters because the  school support rating is part of the model is a non sequitur what the app what the admissions committee is looking at is not the st reader's evaluation of the school support ratings it's looking at the narratives that the teachers and the guidance counselors and the many other people who write letters of recommendation to testing to the character of applicants are actually saying there's nothing about the number that's initially assigned that bears on that in any way are the office of civil rights founded the office of institutional research founded the admissions rates for asian americans jumped dramatically in two thousand and nineteen and there was post conduct activity that proved it now i could go on in detail about each one of these but i think what was it like to let go i'm sorry i know that was a long wind up but i want to i want to be precise in answering your question the district court made specific findings with respect to each of those allegations and she found that not a single one of them was true the o c the office of civil rights just for example found that looking for it and i'm quoting from page four thousand five hundred and twenty of the joint appendix it was the office of civil rights overall conclusion that harvard did not discriminate against asian american applicants in its undergraduate program in violation of title six and in fact you know thinking about the personal rating i do want to save time to talk the this one particular issue which in this appeal has assumed a frankenstein like significance i want to make a couple of points about this but the st thing i think that's worth mentioning is that this very thing that is a disparity in the personal ratings allocated by st readers was examined it was o c r itself found that numerical reached the exact same conclusion based on its review of all the evidence that judge burroughs did the reason it reached that conclusion is that well here the instance is an applications where in a represent a large representative sample of applications o c r actually pulled the application files and read it and made a specific conclusion that the ratings accord by the st reader in fact were well supported by the application file it specifically found that although there was a variation there was an association that looked like it was with race in fact race was not the never offered a single application file that reflected even argued reflected a personal rating that he claimed reflected bias or discrimination the judge in this case just like o had to do had to was confronted with a regression model about which i can say quite a lot that professor our city icono did all of the academic rating of the extracurricular rating and the personal rating all of which showed racist an association between african american identity and white identity for some reason that with respect to the academic rating and the extra curricular rating professor our city aka knows model showed that even controlling for all of the objective data about academic performance asian americans were scoring significantly higher than whites he didn't know why because it was due to factors that the limited data that's available in the model doesn't reflect for example did the key in when it's a kid when the national science award has this applicant you know did she published original research that was reviewed by the faculty who fell head over heels in love with her similarly the extracurricular rating as to the personal rating he found as we now know a negative association a slight negative association just as o c r had found the  district court had to find make a judgment she says i have to find whether that slight negative inference reflect less light that of association warrants an inference of intentional discrimination and she found that it didn't in the personal rating the notion that this man had the chutzpah to then say i'm confused about what's in it but i know that it's purposeful discrimination is really the on the  pale and i do think in this regard and i don't mean to be preaching to the court but the issue in this case is not whether there was or wasn't at inference of purposeful discrimination based on what one reader or most chew readers at an early stage of the process wrote down for the personal rating the issue is was there discrimination intentional discrimination against asian american applicants in the admissions process a process that doesn't even in evaluating these students in committee doesn't even take account of what somebody one of forty admissions officers early on put  as the athletic writing the academic writing or any such thing and mr waxman beef before you wrap up this is our only chance to talk with counsel so i did want to ask whether you seeking a diverse student body in a diverse community on the other hand there is a real concern about improper balancing and so could you talk about the appropriateness or inappropriateness of factoring in  that means in this case so i think the relevant five i think you'll rates could mean different things but let me let me explain to your honor what the fair what the statistics were that were discussed expert didn't provide any testimony in support of the theory that there was racial balancing what the district court looked at a number of things it looked at and it's in the histogram that's you know that has that think i'm forgetting what page of the of the opinion it's around page eighty or eighty one dollars found that the variation in admission rates of asian americans african americans hispanics and whites vary dramatically from year to year she also looked at the church the year over year change in the percentage of each matriculating class and middle class based on race she also make comment and this may be your honour's question up out on the fact that overall asian americans are at it at a slightly lower rate than white applicants although she also found and you know the data is is right there in the record that among that that's for those applicants who are what what the the court and counsel refer to as the l t c s which is an acronym that was made in this litigation africa agent americans were admitted at a higher rate than whites and she also found based on set in four out of the six years asians of merit asian americans were admitted at a higher rate than in whites she also found as professor card showed that female asian americans are admitted at a higher rate than whites asians from california are admitted at a higher rate than whites the reason for the overall distinction is during the years studied asian americans made up a relatively small share of the thirty percent of students admitted who are able d c s now that number that percentage increased to thirteen percent by the last year of the study  eighteen said you know you would look at the percentage of asian americans and african americans and hispanics in the class and there must be racial balance in going on let's just look at their own metric over how they came i mean i can only imagine how they came up with that specific your range but over that your range a low african american percentage of the class varied by seventeen percent hispanic percentage of the class varied by forty percent the asian american percentage of the class fail varied by sixteen percent and just to put some meat on the bones of these statistics the latter is the difference between in an average middle class of two thousand the difference between three hundred and fifty admitted asian americans and four hundred and sixty admitted asian americans though the at trial for the plaintiffs claimed and consequent repeated again today that you know the evidence here is that there was some dramatic increase in two thousand and nineteen which was the class that was admitted just after this lawsuit was filed with all due respect that is that is like the rooster taking credit for the dawn but just looking at the years leading up to the district court's opinion asian american prowess legacy their children faculty members and then the dean may have a special list of people for whom there are special it's not thirty percent every year but thirty percent was used as sort of our welfare for it for the years that were study i just wanted i i actually want to correct a few predicates in your honour's question these are not people who get in for that reason these are applicants who have one of those four characteristics the testimony in the case everybody acknowledged was that this pool these people are not getting in i mean that determinative factor is that they're not that they're a son or daughter of a harvard faculty member that is one factor they get a tip but the test to hold that they do get a bit of a preference if they are in one of these categories  mission but they are and that it just by being in such a category yes just as students who get an academic rating of wanted or a personal rating of one or happened to be from an under represented minority get a tip that benefits them only if they are otherwise extraordinarily well qualified on all other dimensions ok thank you thank you thank american perspective in current students and alumni who originally sought to intervene in this case assuming you fully understand that race conscious admissions programs like harvard's remain a vital tool for selective universities in pursuing the educational benefits that flow from a diverse student body and they also help ensure remarkable well rounded under represented students of color are not overlooked in the admissions process and i just discussed the points here today st i would like to focus on how harvard's individualized process works in practice because i think that is critical in understanding how the plus factor operates here and then and also how the overall narrow tailoring framework functions but i'd also like to discuss a little bit about the racial balancing piece that's been a subject you know a couple of the questions here today now i think it's important for the court to understand just how challenging the admissions process is at harvard it's received over thirty five thousand applications from how the competitive students from around the country it's admissions officers have a tough job t the six percent who are admitted include some white and asian american students in the middle and lower deciles that is represented in document for fifteen dash one and i mention that because that's a very critical that was one of those factors that the group or court looked at at page three hundred and thirty nine of its opinion in order to better understand exactly how this flexible individualized process works now the overwhelming evidence in this case including hundreds of student files reviewed all applications in the record shows that harvard's admissions process is consistent with the forty years plus a president grounded in an individualized review that is nearly tailored to achieve harvard's compelling interest in student body diversity and i just want to get two quick examples of that so when ten dhea one of the student miki applied to harvard he submitted an se describing how he overcame bully and because of his language and a for about a year he practiced speaking with a pencil in his melt between his teeth just improve his english speaking skills nauruans reviewers commented favorably on tang's vietnamese identity and as well as his determination in overcoming the adversity his embracement of his identity in high school and eventually graduating valedictorian sarah call another student miki wrote in her essay about how she had become involved and engaged in youth violence following the death of a friend who was shot and killed through that kansas city youth board sarah provided recommendations to the mayor to combat youth violence and reviewers favorably ties to her community as well as her academic prowess where she earned excellent grades neither sara nor tang had perfect s a t s scores but their file reviews reflect the careful balance and the difficult balance in weigh in strong personal and academic qualities and experiences in assigning overall ratings that align perfectly with the type of individual process demanded by pays ultimately successful in a race and race from the admissions process their applications will look markedly different as they and other students of color would not be able to fully convey their strengths and contributions this is not what the courts intended with forty plus years of case law i do want to mention you know very briefly this this notion about race having to be a factor of a factor and about how that inter not intended for there to be a very prescriptive way of considering race in a holistic factor and i think that's definitely so long as it is narrowly tailored to the compelling interest and it is necessary that's where the courts find themselves one last point on and she judges if i may yes so one last point on racial balancing the united states seem to suggest that you know looking at this year you're not seeing much of a difference is what the courts you know are centering on and that's what they're concerned about disturbing to the dissenting opinion ultimately intruder facts about fischer were disturbing to the dissenting opinion in fisher but most baksho intruder that there was a thirteen percent of all of six hundred dollars represented students of color from year to year only bury him within less than one percentage points collectively over a stretch of forty five straight years and yet the court approved and the reason and whether or not the individual is process has been erased or infiltrated so as to cause that thank you your honor thank you very much if you would now mute you'll hear from  good afternoon and may it please the court my name is john healy and with the n w a c p legal defense and educational fund and we represent twenty six harvard student and alumni organizations including ten asian american organizations as in uki in this case these organizations which collectively represent over sixteen thousand block what next asian american native american and white students and alumni stand united before this court in prime support of harvard's race conscious admissions program because they know from their own personal experiences the keitel importance of racial diversity and their hyper to education i would  like to address the face preferred race neutral term give which the district court below found to be unworkable and inadequate and significant part due to the dramatic one rd reduction of the black student population at harvard now it is widely acknowledged that i'll grow can k through twelve educational system to provide qualified and hardworking plot students from accessing important educational opportunities that would otherwise bolster their college applications are students who would unquestionably succeed at harvard and would contribute to the educational benefits of diversity at harvard and yet s if they would have black students more than students in any other racial group suffered the most from their race preferred race to troll alternative and it is especially remarkable for x of the faith in the department of justice to suggest that race is a relevant while our country is currently students by citing to increased numbers of students in other racial groups but that of course the law is on a false presumption that students one race is fungible with students of another race and that they would they would contribute the same to the benefits to the educational benefits of diversity and that of course is contrary to the individual eyes assessment that is required in a holistic admissions process and has been endorsed by the supreme court for over forty two years one  is not inappropriate substitute for another student color just like one black student is not an appropriate stick a substitute for simply another black student rather race she be considered in conjunction with the host of other factors that is in that student diversity within the black student population harvard madison trice of love harvard student testified at trial about the importance of recognizing and understanding the rich diversity within the black community whether it's political views socioeconomic status not national origin and of course academic interest and the district court heard testimony about this diversity from another harvard student cecilia munoz who identifies as both african american and mexican american and it's because of the diversity in harvard's black and latin next communities that she was able to explore her by racial identity at harvard much more so than her predominately mexican american community and home and and this diversity also helped to academically in her latin american studies major but i've been eating race conscious missions but i don't harm black students it would prevent for example it would prevent harper from considering the unique unique contributions of native american students living on a reservation it would have disadvantaged harvard student catherine ho who since her all three of her college essays on her vietnamese identity inherit that identity and heritage which harvard missions officers looked upon favorably in direct contradiction and contradiction to us in the face claims chief judge howard i am about to run out of time i have one final point if i may have an additional minute perhaps one minute this is an important point which i think it's important for the court to hear each and every one of the organizations that i represent condemn race discrimination against any person and most certainly against asian americans but this case does not seek to eliminate bias against asian americans as demonstrated by the remedy the sole remedy that as if a six which is the complete elimination of race conscious admissions and nothing more and to illustrate this point in count it that they claims that harper discriminates against asian american students these are b white students and yet if abigail fisher had sued harvard instead of the university of texas she would have sought you've reserve some time to important question what harper does at the outset of the year and the different court date but i think the fact is they set racial targets and then at the end of the process it's very important for harvard that they don't miss them because different races yield at different weights african americans except at a lower rate for example than asian americans harder only has one thousand six hundred beds they can't miss those numbers as the fitzsimmons testified they have a real problem if they end a two thousand acceptance isn't that of one thousand six hundred but if they get the racial yield wrong they miss those targets so what they have to do is go back at the end of the process and rebalance the class if necessary if they've missed this racial targets and then mr dr been pointed out none of this happened in grutter or fisher this is the kind of excessive focus on racial numerical representation that no supreme court case has said is permissible and so i do think this is among the strongest evidence of racial balancing that distinguishes this case from the previous print more cases and in fact direct mcgrath testified and i've never heard testimony like this in any other case that their goal is to achieve the same numbers they achieved here before now we accept for purposes of a in this court a supreme court has said you can't have a forward looking concept of diversity and you want to make sure you have enough representation but no cases said that the goal is to balance it against the prior years numbers that's just patently unconstitutional as a spring or setting groener and parents and bob now on the issue of strict scrutiny i want to make sure our obligation is clear fisher two there was a claim of asian american discrimination there was a debate that ages twenty two dollars or seven in the majority opinion and then threw out just as little as dissent about whether texas was using race in a way that discriminated against asian americans at no point in that opinion that the supreme court even begin to it suggests that that was not subject to strict scrutiny everyone accepted it now harvard says it uses race the same way that texas does meaning it can play a wall in any applicant who checks that box on their application in fact the amicus presentation today confirms that they pointed out that they believe there are certain even american africans who benefit from their race so i don't want to be overly simplistic judgments but to get to your question on this let me just reduce it to a basic miracle equation and this is not representative of what's going on imagine being african or african american or hispanic get you a plus one as a temp and imagine being white is neutral so we called a zero and imagine the evidence we think shows that being asian gets you a minus one now harvard concedes that whether there's a plus one versus zero is subject to strict scrutiny but somehow whether there's a zero versus a minus one is not that's not what fisher to says that's not what any case says it's all subject to strict scrutiny once the program is not basically neutral on racial lines now finally i'm officers holding constant any reasonable set of observable characteristics that's a finding of fact that must be accepted they are either asian americans have worse personalities and deserve lower personal scores or something as a right it is one or the other now harvard tried to sidestep the problem by blaming the counselors and the teachers but those but those ratings which were given by harvard had only minor differences between white there no questions from the piano lead like to thank counsel we will take the difficult issues in this case under advisement and we will get you a decision as soon as we can thank you all i thank your honour's thank you that concludes the arguments for today the session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court