Gorsuch and Sotomayor Criticize the Court for Not Hearing a 6th Amendment Right to Confrontation Issue

Written by Julia Gorski


On November 19, 2018, the United States Supreme Court denied certiorari to a 6th Amendment Confrontation Clause issue involving the use of a toxicology report in a drunk driving case. In a four-page dissent, Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, criticized the Court for not hearing the appeal.

Background: Stuart v. Alabama

The 6th Amendment Confrontation Clause provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action. The purpose of the clause is to prevent the defendant from being convicted of a crime without first giving the defendant an opportunity to face his or her accusers and test their honesty and truthfulness in front of the jury.

In the case seeking review, Stuart v. Alabama, the defendant, Vanessa Stuart, was convicted of criminally negligent homicide and driving under the influence after causing a fatal car accident. At Stuart’s trial, the state introduced toxicology reports containing estimates of her blood alcohol content at the time of the accident. The reports were prepared and signed by forensic scientist Belicia Sutton. Sutton did not testify at trial and Stuart was not given an opportunity to cross-examine her before trial. Rather, the reports were introduced through the testimony of Jason Hudson, chief of the Department of Forensic Sciences, who was not present when Stuart’s blood was handled. Stuart objected to the introduction of the toxicology reports as evidence absent Sutton’s testimony, claiming it violated her right to confrontation. However, the reports were admitted, and Stuart was ultimately convicted.

On appeal, the Alabama Court of Criminal Appeals affirmed the conviction, holding that Hudson’s presence at trial was sufficient under the Confrontation Clause. Stuart sought review from the United States Supreme Court. The issue on appeal was whether the Court of Appeal’s decision was consistent with Bullcoming v. New Mexico, where the Supreme Court held that introducing a lab report at trial without testimony from the individual who prepared the report violates the Confrontation Clause. The Court denied hearing the case.

Gorsuch and Sotomayor Dissent

In his four-page dissent, Justice Gorsuch, joined by Justice Sotomayor, criticized the Court in denying certiorari. Referring to the Constitution’s promise that an individual has the right to confront his or her accuser, Gorsuch wrote:

That promise was broken here. To prove Vanessa Stuart was driving under the influence, the State of Alabama introduced in evidence the results of a blood-alcohol test conducted hours after her arrest. But the State refused to bring to the stand the analyst who performed the test. Instead, the State called a different analyst. Using the results of the test after her arrest and the rate at which alcohol is metabolized, this analyst sought to estimate for the jury Ms. Stuart’s blood-alcohol level hours earlier when she was driving. Through these steps, the State effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction. The engine of cross-examination was left unengaged, and the Sixth Amendment was violated.

Justice Gorsuch’s frustration with the court is attributable to the last Supreme Court decision in this area of the law in 2012, Williams v. Illinois. Similar to Stuart v. Alabama, the issue in Williams was whether the testimony of an expert witness that is based on a test the expert did not personally perform violates the Confrontation Clause. There was no clear majority ruling, but four separate opinions were written by Justice Samuel Alito, Justice John Roberts, Justice Anthony Kennedy, and Justice Stephen Breyer. The four-justice plurality created confusion among lower courts attempting to abide by the Court’s ruling. Justice Gorsuch saw Stuart v. Alabama as a chance for the Court to clarify this issue, concluding his dissent with, “I believe we owe lower courts struggling to abide our holdings more clarity than we have afforded them in this area.”


Forensic evidence plays a decisive role in today’s trials. Introducing lab reports without accompanying testimony from the individual who actually prepared and signed the report can be problematic for a defendant when considering the issues facing the forensic science community today. A large portion of forensic analysis is subjective, and there are no national uniform standards or certifications regarding subjective analysis. Consequently, great fragmentation exists among practices across states, counties, and within laboratories themselves. One scientist can test evidence and come to a different conclusion than another scientist testing the same evidence. One scientist’s error or threat of bias will not be the same as another’s. In light of the foregoing, lower courts must use great caution in admission of forensic evidence at trial.

While the Court’s denial of certiorari in Stuart v. Alabama does not effectively aid lower courts struggling to abide by the Court’s holding in Williams, Justice Gorsuch’s dissent is a noteworthy view of a new Justice on the Confrontation Clause and highlights the confusion created by the Supreme Court in this area of the law.


Brief of Respondent in Opposition to Petition for Writ of Certiorari, Stuart v. Alabama, 586 U.S. ___ (2018) (No. 17-1676), 2018 WL 3855210.

Bullcoming. v. New Mexico, 564 U.S. 647 (2011).


Legal Info. Inst., Right to confront witness (last visited Nov. 27, 2018).

Petition for Writ of Certiorari, Stuart v. Alabama, 586 U.S. ___ (2018) (No. 17-1676), 2018 WL 3032904.

Stuart v. Alabama, 586 U.S. ___ (2018).

Williams v. Illinois, 567 U.S. 50 (2012).

Photo courtesy of James Publishing.

November 2018: Laurel J. Eveleigh (L’90)

Laurel Eveleigh knew from a young age that she wanted to be a lawyer, but her path to law school was not exactly a straight one.  Trying to dispel the popular notion that practicing law was predominantly Perry Mason moments and dramatic courtroom conflict, her high school counselor (and favorite English teacher) pointed out that lawyers had to be strong writers and spent far more time in the library than the courtroom.  Taking that into consideration, Laurel put the notion of pre-law undergraduate studies, followed by law school, on the back burner for a bit.

Laurel J. Eveleigh Alario & Fischer, P.C.

Laurel went to Syracuse University for undergrad and majored in Interdisciplinary Linguistic Studies, which allowed her to pursue her love and affinity for foreign languages and study the science of language structure, evolution and acquisition.  Through her major, Laurel continued to study French (which she had been taking since junior high) and took courses in Spanish, German, Latin and Russian.  While she thought she might pursue a career putting her  language skills to use, when graduation came, a very different opportunity arose and she ended up, at least temporarily, taking another path.

For two summers in college, Laurel had worked temporary jobs for a company that installed computer systems and built specialized data bases throughout the country.  At first she did data input, but later managed the data processing team and the office.  When the company left Syracuse to install its next system in Rochester, they asked her to come with them.   Later, they asked her to interview with them at their McLean, Virginia headquarters for a job after graduation.  Ultimately, they hired her as a trainer and, eventually, Laurel was promoted to work with programmers and users to develop new products for the real estate industry.  After six years, she was recruited by a telecommunications company in Connecticut to do similar work in new product development.

Eventually, Laurel realized that while her work was challenging and interesting, something was missing.  With that thought in mind, she began, once again, to explore the idea of law school.

At first, Laurel looked at part-time law programs so she could continue to work and support herself.  It wasn’t long, though, before she realized that the choice of law school has implications throughout your legal career.  She dismissed the idea of going to school part time, applied to multiple schools and found herself looking very favorably at Syracuse.  She was drawn to the excellence of the school, the success of its alumni and its competitive atmosphere.  With her parents still living in Syracuse it seemed a perfect fit, so Laurel packed her bags and moved back home.

Like many students going into law school, Laurel didn’t know what substantive area of law she wanted to practice but she was sure of two things:  she wanted to be on the Law Review and she wanted to be a litigator.  She knew that Law Review would help her to hone those vitally important research and writing skills and prepare her to be competitive in the job market.  While on Law Review, Laurel wrote her Note about the rights of unwed fathers.  Even though Laurel did not intend to practice family law, there were some cases percolating through the courts and she was intrigued by the knotty issues and competing social and political interests.  Laurel’s Note, Certainly Not Child’s Play: A Serious Game of Hide and Seek With the Rights of Unwed Fathers, was published in Volume 40 of the Law Review.

Laurel was also active in Moot Court.  She and her partner made it to the semi-finals of the intramural Lewis Appellate Competition and won the “Best Brief” award.  As a 2L, she was also selected for the National Appellate Team, coached by Professor Christian Day.  At the end of her 2L year, Laurel’s fellow Law Review members pushed her to run for Editor-in-Chief.  She won the Editor-in-Chief position for Volume 41 and, wanting to put all she had into it, decided not to participate in Moot Court competitions as a 3L.

After graduating summa cum laude from the College of Law, Laurel ended up packing her bags yet again and moving to Washington, D.C. to work for the firm she clerked for as a 2L, Crowell & Moring.  She picked Crowell & Moring because it was the least “big firm like” of all the firms she interviewed with.  Laurel loved the atmosphere – it was a light hearted and welcoming place. But, as much as she loved the firm, she quickly figured out that a big firm was simply not for her.  After about a year, she started interviewing around D.C. with boutique litigation firms, but before making a move, Laurel got a phone call from Professor Gary Kelder.  Professor Kelder had been asked by the managing partner of an environmental and litigation firm in Syracuse if he knew of any promising young lawyers who might be a good fit.  Professor Kelder had recommended Laurel.  She interviewed with Devorsetz, Stinziano, Gilberti, Heintz & Smith and was offered the job.  For the last time, Laurel packed her bags and moved back to Syracuse.  She was with the firm from 1991-2006, first as an associate, then as a partner.

While at the Devorsetz firm, Laurel worked on large-scale litigation matters and delivered many successes.  In the wake of 9/11, Laurel was co-project manager of the environmental review for a statewide wireless network for emergency first responders – the largest contract ever let by the State of New York at that time.  She was environmental counsel for the cellular telephone company that won the FCC license for the initial buildout of cellular service in the New York Metropolitan, New England, and Pennsylvania service areas.  She secured significant brownfields program credits for a major mixed-use development in Central New York.  She provided testimony before the State Public Service Commission on behalf of cellular service providers.  She represented heavy industrial entities (including quarries, waste management facilities, cogeneration plants and manufacturing concerns) to secure permits and rights to build and, where required, litigated her clients’ rights to approvals when they were improperly denied.  Laurel also devoted significant time to developing young lawyers’ skills, mentoring junior attorneys and recruiting new and lateral hire attorneys.

She left the firm in 2006 to set up her own practice – seeking to provide “big firm” quality legal work to smaller businesses and individuals.  One of her frustrations had been that smaller companies or individuals with valid claims simply could not afford to litigate because the legal fees made it uneconomical.  Laurel wanted to provide an alternative to a larger firm that could provide high quality legal representation at lower cost.  Laurel also provided contract legal services to her former firm and other firms as well.

One of those firms, it turns out, was Alario & Fischer, P.C.  In early 2014, Laurel got a phone call from Chris Fischer, a former colleague at the Devorsetz firm, to refer a case to her.  Shortly thereafter, Mr. Fischer asked her to work on several projects with his office.  A year later, Laurel took a job with the firm and continues to practice there today doing construction and land use litigation.

Laurel is also active in the local legal community.  She currently serves on the Board of Directors of the Central New York Women’s Bar Association and is its 2019-20 President-Elect.  She is also a member of the CNYWBA’s Judicial Review Committee.  She belongs to the Onondaga County and New York State Bar Associations.  Laurel has been an adjunct at the College of Law, first in collaboration with Professor Kelder teaching a seminar on environmental crimes and, more recently, teaching the introductory Environmental Law course to 2Ls and 3Ls.

Laurel says the decision to go to law school was the best decision she ever made.  And, somewhat ironically, the things Laurel loves best about the practice of law and the skills she is known best for among her colleagues, are research and writing.

Looking back, Laurel remembers her time at Syracuse Law fondly. She greatly admires Professor Kelder for his ability to look at the law from so many perspectives and communicate it to students in a way that makes sense – in fact, while she was in law school, she took every course that Professor Kelder taught.  Laurel has incredible respect for Professors William Wiecek (who was the Law Review advisor at the time), William Banks and Travis Lewin, among others.  Professor Christian Day, coach of the National Appellate Team and another influential figure, pushed and cajoled and inspired the team to excellence.  She loved the Libel Show where all the law school clubs, organizations, and faculty performed skits or musical numbers, including the Law Review’s very own rendition of the B-52s’ “Love Shack” (“Law Shack”) during her 3L year.  To this day, Laurel still keeps in touch with her Lewis Appellate Competition partner and members of her e-board on the Law Review as well as many other law school classmates.

If there is one piece of advice Laurel would give to students, it would be to really appreciate the opportunity law school offers.  She says, in practice, rarely do you have the luxury of totally immersing yourself in a particular subject, keeping abreast of all the most recent developments in the Supreme Court or following a line of cases simply because it’s interesting.  She hopes the current College of Law students will savor the moment and soak in everything they can.

This story was written by Alumni Editor Stefani Joslin and is the thirteenth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.


Supreme Court to Determine Whether the Government is a Person Under the America Invents Act

Written By Christina E. Brule


On October 26, 2018, the United States Supreme Court granted certiorari to determine whether the government is a “person” who may petition to institute review proceedings under the America Invents Act. Previously, the United States Court of Appeals for the Federal Circuit upheld a decision by the Patent Trial and Appeal Board that stated the Government was a “person” and had standing to file the petition.


In 2011, Congress passed the Leahy-Smith America Invents Act (“AIA”), which created several quasi-adjudicatory proceedings, including the review of covered business method (“CBM”) patents, that the Patent Trial and Appeal Board (“PTAB”) oversees.

Return Mail, Inc. (“RMI”), founded in 2000, serves end-user companies and print mail service providers, which are companies likely to receive large quantities of return mail. RMI offers three products: RMI READ, a barcoding system that eliminates the handling of return mail; RMI On Site, a process that reduces the hours of labor required; and RMI reAddress, a search tool that updates your recipient address databases.

RMI patented RMI READ as a CBM patent: U.S. Patent No. 6,826,548 B2 (“the ’548 Patent”). Pursuant to § 18 of the AIA, a petition requesting CBM patent review of claims 39-44 of the ’548 Patent was filed by the United States Postal Service and United States of America (collectively “USPS”). RMI also brought suit against the United States for infringement of the ’548 Patent in the U.S. Court of Federal Claims.

The PTAB concluded that claims 39-44 of the ’548 Patent were unpatentable. Throughout the proceeding, RMI argued that USPS lacked standing to petition for CBM patent review. However, in its final written decision, the PTAB determined that USPS had standing under § 18 of the AIA. RMI appealed the final written decision of the PTAB.


On appeal, RMI put forth two alternative arguments: (1) USPS does not meet statutory standing requirements to petition for CBM review or (2) the ’548 Patent claims are not directed to ineligible subject matter and are patentable. The Supreme Court has granted certiorari to review the first argument.

RMI argued that because it brought suit under 28 U.S.C. § 1498, an eminent domain statute, the USPS is statutorily barred from petitioning for review of its CBM patent. The court disagreed, stating that “nothing in the text of § 18(a)(1)(B) indicates an intent to restrict ‘infringement’ to suits that fall under the Patent Act.”

Furthermore, RMI argued that the government has an implied license to practice patented inventions. Once again, the court disagreed. The court stated that “[w]hen the government has infringed, it is deemed to have ‘taken’ [a] patent license under an eminent domain theory.”

Thus, the court concluded that USPS had standing within the meaning of § 18(a)(1)(B).


The United States Court of Appeals for the Federal Circuit affirmed the decision of the PTAB. The court held that USPS had standing to institute review of a CBM patent under the AIA.

In addressing the dissent’s position, that the government is not a “person” within the meaning of § 18(a)(1)(B), the court stated: “we believe the better reading of ‘person’ in § 18(a)(1)(B) does not exclude the government.”


In the 2-1 decision of the court, Judge Newman dissented. The dissent argued that generally a “person” defined by statute does not include the United States and its agencies unless expressly stated in the statute.

Judge Newman offered multiple references in support of his interpretation: the language used in § 18(a)(1)(B) is “person;” The Dictionary Act, 1 U.S.C. § 1 excludes the government from the definition of the term “person”; and numerous cases to establish precedence that the “person” is “ordinarily construed to exclude the government.”

Looking Ahead

The USPS contends that the statutory context around the AIA indicates that the term “person” should be construed to include the government.

Return Mail notes that the question of whether the government constitutes a “person” under the AIA is important because federal agencies often respond to suits of infringement by filing petitions that invoke the jurisdiction of the PTAB.

This case continues the recent trend of the Supreme Court to take more patent-related cases.


28 U.S.C. § 1498(a).

AIA § 18, Pub. L. No. 112-29, 125 Stat. 284, 329-31 (2011) (CBM review).

Company Information, Return Mail, Inc. (last visited Nov. 10, 2018).

Gene Quinn, Federal Circuit says U.S. government is a ‘person’, can file CBM to challenge patents, IPWATCHDOG (Aug. 29, 2017).

Leesona Corp. v. United States, 599 F.2d 958 (Ct. Cl. 1979).

Patent Trial and Appeal Board, USPTO (last visited Nov. 10, 2018).

Return Mail, Inc. v. United States Postal Serv., 868 F.3d 1350 (Fed. Cir. 2017).

Steve Brachman, Supreme Court to Determine if Federal Government Is a ‘Person’ Eligible to Petition the PTAB, IPWATCHDOG (Oct. 31, 2018).

United States Postal Serv. v. Return Mail, No. CMB2014-00116, 2015 Pat. App. LEXIS 12853 (P.T.A.B. Oct. 15, 2015).

Photo courtesy of GoLegal.

The Music Modernization Act: A Monumental Transformation of Federal Copyright Protection in Digital Music

written by Emily M. Welch


With the monumental shift from physical to digital music consumption in recent years, an update on legislation addressing digital developments in music has become a necessity. On October 11, 2018, President Donald J. Trump signed into law the Music Modernization act, which is viewed as the most sweeping reform to copyright law in decades. The Music Modernization act, which was supported by a majority of songwriters, publishers, streaming services and politicians across the spectrum, revamps Section 115 of the U.S. Copyright Act in an attempt to bring copyright up to speed for the streaming era.


Prior to the passage of the act, there were only two real options for starting a music service: clear every song manually before putting it online or set aside a fund and expect to get sued. Licensing was obtained under a “piecemeal” approach, which required music streaming services to obtain licensing for digital music on a per-work, per-song basis. However, even though licensing was a requirement, digital music providers only had to file bulk notices of intent with the Copyright Office for the rights-clearance process. The Copyright Office only required authorship to be identified “if known”. In a time where proper attribution was virtually impossible, many songwriters were not getting the royalty payments that they deserved. The process was time consuming and costly, and setting money aside in anticipation of litigation was seemingly the better approach.

When copyright protection was extended to song recordings, Congress chose not to include pre-1972 works in the coverage. Owners of pre-1972 musical recordings and users of those recordings were in constant dispute over whether copyrights existed in those works, and if so, what level of compensation was due.

Act’s Main Pieces of Legislation

The Music Modernization act brings two major changes to the preexisting copyright laws that fixes the issues above: it changes the procedure by which millions of songs are made available for streaming services and compensates artists for digitally downloaded pre-1972 master recordings. The act provides benefits for songwriters, by enhancing the royalty process, and also music streaming services, by providing confidence that, if they follow the process, they can accurately license all the musical works on their service without fear of billion dollar lawsuits against them.

In an effort to improve the licensing process, the Music Modernization act created a mechanical licensing agency that will be able to issue licenses to digital services and collect and distribute royalties to songwriters and publishers. The agency, called the Mechanical Licensing Collective (“MLC”), will be able to identify rights holders and create a public database of musical works and sound recordings so that songwriters and publishers can be matched to their songs and timely payments can be made. The MLC can also provide blanket licenses to digital music service providers, which would allow them to use any song and immunizes them from infringement lawsuits.

For the first time ever, the act provides that songwriters and artists will receive royalties on songs recorded before 1972. The protection for pre-1972 songs now has a term limit of 95 years from the date of publication, with an additional period tacked on the end based on a range that depends on how recently the song was published. The act also fully federalizes these song recordings, preempting state laws and incorporating all the normal limitations to copyright law, like fair use, that apply to any other copyrighted work.

Opposition to the Act

While the act gained unanimous support in Congress, it has not proceeded without opposition and criticism. Jim Meyer, Chief Executive Officer of SiriusXM, expressed his opposition due to concerns regarding the additional financial burden on digital music providers. The satellite radio provider would be forced to pay for pre-1972 songs, while its “terrestrial radio” rivals would not be held to the same requirements. Considering that SiriusXM and its AM/FM competitors are in the same market, Meyer argued that it is bad public policy to hold them to different licensing requirements.

Looking Forward

While the Copyright Office is currently working on a number of regulations and public outreach to solicit information to aid in the formation of the Mechanical Licensing Collective, the full effects of the law remain to be unseen. The future of digital music protection under the Music Modernization Act will be dictated by a formation of some of copyright’s most prominent experts and technological masterminds. Only time will tell the impact of copyright’s most recent revolution.


Amy Goldsmith, Musically Inclined: The Music Modernization Act of 2018, IPWatchdog (Oct 30, 2018).

Anthony S. Volpe & Savannah G. Merceus, The Tune Is Changing in the Digital Music Landscape, LegalTech News (Oct. 30, 2018).

Bill Donahue, Here Are The Final Tweaks To The Big Copyright Bill, Law360 (Sept. 28, 2018).

Bill Donahue, Trump Signs Music Modernization Act Into Law, Law360 (Oct 11, 2018).

Dani Deahl, The Music Modernization Act has been signed into law, The Verge (Oct 11, 2018).

Ed Christman, President Trump Signs Music Moderinzation Act Into Law With Kid Rock, Sam Moore As Witnesses, Billboard (Oct. 11 2018).

Jim Meyer, SiriusXM CEO Jim Meyer Explains the Trouble With The Music Modernization Act, Billboard, (Aug. 23, 2018).

Jordan Bromley, The Music Modernization Act: What Is It & Why Does It Matter?, Billboard (Feb. 23, 2018).

Nilay Patel, How the Music Modernization Act will help artists get paid more from streaming, The Verge (Oct 2, 2018).

How the Harvard University’s Admissions Trial Could Make Its Way to the Supreme Court





In 2014, the Students for Fair Admission group filed a lawsuit against Harvard University that alleged Harvard’s admissions process was discriminatory. This lawsuit began a three-week trial in United States District Court before Judge Allison D. Burroughs on October 15, 2018. The Students for Fair Admissions group is a nonprofit led by Edward Blum, a legal strategist. The group began this action by representing a first-generation Asian-American who applied to Harvard for the Class of 2014, but was not admitted. The group alleges that the Harvard admissions committee practices racial discrimination against Asian-American applicants, and that Harvard’s overall admission process does not analyze applicants equally. Harvard has continuously denied these allegations and emphasizes that race is only one of many factors considered when examining an applicant’s file. The ruling of this case could generate implications for other colleges throughout the United States that consider race in the admissions process.

Students for Fair Admissions Argument

The lawsuit accuses Harvard of imposing tougher standards for Asian-American applicants by using a discriminatory “personal rating” category that includes recommendations by professors, personal essays, and interviews. The Students for Fair Admissions also argue that Harvard practices “racial balancing,” in their practice of accepting a certain mixture of races. The group’s allegations rely on a study performed by Peter Arcidiacono, a Duke University economist. The study indicated that even though Asian-Americans uphold strong academic records and higher SAT scores that surpassed white applicants, they are admitted at a lower rate when compared to wealthy and well-connected applicants, such as the children of the University’s alumni and donors, and recruited athletes. The Students for Fair Admissions note that these prioritized applicants are also likely to be found on the dean’s list before admittance. The group is ultimately fighting for a Harvard admissions process that does not consider a student’s race, as well as the opportunity for the court to take a closer look at overturning affirmative action in higher education.

Harvard University’s Argument

Harvard leaders argue that race is considered only narrowly, and that Harvard’s share of Asian-Americans has grown yearly, reaching 23 percent of the current freshman class. Harvard also argues that it would be unable to achieve a population of diverse students without considering race within its admissions process. Harvard upholds that the statistical analysis presented by the Students for Fair Admissions is “deeply flawed” and generates a “misleading narrative” about the Harvard admissions process. The numerical ratings that applicants receive in the admissions process are based on various factors, including academics, extracurricular activities, athletics, and personality. This is only one part of a long process of checks and balances to admit a diverse class. Harvard argues that it looks at applicants as a whole, rather than only based on one criteria, such as personality, and that such a complex set of criteria does not discriminate against any applicants. Recently, one of Harvard’s attorneys, William F. Lee, told reporters that the admission of some donor’s children, or donor’s relatives on the dean’s list does not have any effect on Asian Americans and how they are evaluated for admission. Ultimately, Harvard maintains that it would be unable to achieve the highest levels of academia and diversity among students without weighing students’ race because the campus would become less diverse, or less academically excellent.

Going Forward

The Students for Fair Admissions do not intend to call any of the plaintiffs to the stand to share their grievances because they argue that the students have a right to remain anonymous for fear of harassment. As the trial progresses, various witnesses are expected to testify such the University’s dean, Rakesh Khurana, and Gilpin Faust, who recently stepped down as President of Harvard University. In the final week of the trial, current and former Harvard students are also likely to testify in support of the college’s affirmative action program.


This case challenges whether colleges across the United States can consider the race of applicants. In the past, such considerations have been upheld. For example, in the case Fisher v. University of Texas, the United States Supreme Court upheld The University of Texas at Austin’s program that allowed the consideration of race as a factor in their admissions process. The Supreme Court followed precedent and held that the benefits of diversity were a compelling interest and justified the use of race as one of many factors considered when admitting students. However, the Supreme Court has also held that when it comes to race, “negative action,” such as racial quotas, is illegal. As the trial moves forward, it is likely that depending on Judge Burroughs’ ruling, the losing side could appeal, and this controversial case could make its way to the Supreme Court. If so, this trial brought against affirmative action in higher education will be only the beginning of a long and historical journey. Will the court follow precedent, or create a new standard?


Adam Harris, The Harvard Trial Doesn’t Matter, The Atlantic (Oct. 18, 2018).

Alia Wong & Isabel Fattal, The Complicated History of Affirmative Action: A Primer, The Atlantic (Aug. 2, 2017).

Collin Binkley, Harvard Emails Illuminate Power of Wealth in Admissions, Associated Press (Oct. 17, 2018).

Delano R. Franklin & Samuel W. Zwickel, In Admissions, Harvard Favors Those Who Fund It, Internal Emails Show, The Harvard Crimson (Oct. 17, 2018).

Nate Raymond, Harvard Admissions Bias Case Can Proceed to Trial: U.S. Judge, Reuters (Sept. 28, 2018, 3:44 PM).

Patricia Hurtado & Janelle Lawrence, The Harvard Trial: What We Learned This Week and What’s Ahead, Bloomberg (Oct. 20, 2018, 12:33PM).