(Bloomberg) -- The group suing Harvard for discriminating against Asian-Americans in the admissions process insists it is focused on the treatment of applicants at a single college and that “the future of affirmative action is not on trial here,” as lead attorney Adam Mortara declared in his opening salvo Monday.

But the grilling of Dean of Admissions William Fitzsimmons in court on Tuesday suggests that the plaintiff -- Students For Fair Admissions, or SFFA, led by longtime affirmative action opponent Edward Blum -- is taking a different tack.

The group accuses Harvard of engaging in “racial balancing,” with admission of even the highest-scoring Asian-American students capped through vague and manipulable “personal” and overall ratings, while other minorities -- and whites -- are favored. The lawsuit is strikingly different from past challenges of race-conscious college admissions in its championing of a minority rather than of whites who feel they have been denied entry by “reverse discrimination.”

Yet in its quest to replace Harvard’s means of achieving diversity with a race-blind process, the closely watched lawsuit -- grinding on since 2014 and likely headed to a Supreme Court where conservative Brett Kavanaugh was just seated -- could dismantle an admissions system the high court has held up as an exemplar, and thus affirmative action at colleges across the U.S.

“The Harvard case has to be seen as a challenge to ‘affirmative action’ as it is being practiced at Harvard and most other highly selective universities, despite what the plaintiffs’ lawyers say,” said Minneapolis attorney Kirk Kolbo, who argued, and lost, one of the Supreme Court’s seminal affirmative action cases, Grutter v. Bollinger.

‘Quiet/Shy, Math Oriented’

On Tuesday, John Hughes, an attorney for SFFA, interrogated Dean Fitzsimmons over comments by Harvard admissions officers about Asian students, unearthed in a 1990 probe by the U.S. Department of Education’s Office of Civil Rights into whether Harvard’s practices were biased. The government watched the process so closely it set up shop at the school’s admissions office, lawyers in the case said.

SFFA argues that the probe turned up data showing Asian-American students were better than or equal to white applicants on ratings including academics and extracurricular activities -- but not on a personal score assigned to them by the admissions office.

Among the officers’ comments were those describing Asian-Americans as “quiet/shy” and “science/math oriented.” One officer wrote of a prospective student, “Seems like a reserved/hardworking aspiring woman scientist/doctor,” while another staffer wrote, “He’s quiet of course and wants to be a doctor.” A third applicant was described as “extraordinarily gifted in math, with the opposite in English.”

“You didn’t say to your staff, stop doing this, stop using race, stop using stereotypical comments?” Hughes asked Fitzsimmons, who has been working in Harvard’s admissions office since the Nixon administration.

“That’s not correct,” Fitzsimmons said. “We took this report very seriously and shared this report with our staff members, and discussed the report in detail.”

“You never told your staff to stop using race?” Hughes continued.

“I’m not sure I have the image of me sitting down with any individual in the admissions office,” Fitzsimmons said. “I’m not sure who said these things. The point is that the entire staff certainly studied this report very, very carefully to make certain they did not engage in any racial stereotyping. It’s not simply ‘Talk with the individual,’ but talk to the entire admissions committee.”

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In Grutter, Kolbo’s client, Barbara Grutter, challenged a University of Michigan law school admissions process requiring officials to look to “soft variables” beyond grade point averages and test scores.

“While the plaintiffs in those cases were white, we collected detailed admissions data on all applicants,” Kolbo said. “The evidence was that Asian-American applicants were discriminated against at least as much as white students in the admissions process. By that I mean that the grades and test scores for Asian-American students had to be much higher than those of African-American students” for admission.

By limiting its Asian-American population to achieve a particular racial mix, as the suit contends, Harvard is engaged in a practice Kolbo called discriminatory, unconstitutional and “morally wrong.”

Harvard denies discriminating and says its use of race, as one factor among many, conforms with decades of Supreme Court precedent, starting in 1978 when it was held up as a kind of gold standard.

“We are here because Students For Fair Admissions would like to change the law and eliminate all considerations of race in college admissions,” Harvard’s lead defense lawyer, Bill Lee, said in his opening Monday.

Supreme Court

No matter which side wins over U.S. District Judge Allison Burroughs, who is hearing the case in Boston without a jury, an appeal is likely, said Frank Wu, who teaches at the University of California’s Hastings College of the Law.

“This case will likely head up to the the Supreme Court. It certainly is being litigated as if it were,” Wu said. “It’s a big issue. The court has been divided. The personnel has changed since the last major decision. The law is unclear. The defendant is prominent. The plaintiffs are different than in past cases. So if you were a betting person, this is a case to bet on.”

Wu said the case is similar to those mounted with white plaintiffs, but he underscored what he sees as a critical difference.

“Asian-Americans have long been excluded from discussions of race by both liberals and conservatives,” he said, “and it is possible, even probable, that they face racial discrimination.”

Wu, who has testified before Congress in support of affirmative action, stressed that whether Harvard discriminates against its Asian applicants is a separate issue from whether affirmative action is beneficial and constitutional.

Higher Standard

“They should not be confused,” he said, adding that even if one believes diversity is a positive for schools, the evidence presented at trial could show Harvard is discriminating against Asian-Americans. Ahead of all that evidence, said Wu, who has written about the case, “it appears that Asian-Americans are being held to a higher standard than white applicants.”

In court on Tuesday, Hughes was in no hurry to get off of the Harvard admissions officers’ remarks.

“Are these stereotypical comments consistent with the way Harvard wants to use race in the admissions process?” he asked Fitzsimmons.

“This is not our process,” Fitzsimmons said. “We do not endorse -- we abhor -- stereotypical comments. This is not how our admission office or our officers communicate.”

110,000 Files

After court, Harvard’s lawyer Lee noted that ultimately the college was investigated for bias by the government twice and cleared of discrimination. He said plaintiffs pored over hundreds of thousands of pages of admissions records from a six-year period, which Harvard was forced to release as part of the case.

“If you look at 110,000 files and 4,000 applications, you may identify in any one of those a comment or two,” Lee said, but “at the end of the day what they found was no discrimination.”

On Wednesday, it will be Lee’s turn to question Fitzsimmons.

“We’ll fill in a lot of the details,” he said, “where you’ll be able to see just why” the government cleared Harvard.

To contact the reporters on this story: Patricia Hurtado in Federal Court in Manhattan at pathurtado@bloomberg.net;Andrew Harris in Washington at aharris16@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Peter Jeffrey

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