Federal judge Allison D. Burroughs has issued a 120-page ruling saying that Harvard University did not discriminate against Asian-American students, as alleged by Students for Fair Admissions (SFFA), led by Edward Blum. Admitting that Harvard’s admission process is “not perfect,” she said that there is “no evidence of any racial animus whatsoever.”

From the beginning of this highly visible lawsuit, everyone expected this slugging contest to go several rounds, ending up in the Supreme Court. Harvard had a hometown advantage: the case was being held on home turf, led by a single liberal judge appointed by President Barack Obama who previously has butted heads with those on the right: she stopped a President Trump executive order designed to temporarily block the admission of immigrants and refugees from countries with predominantly Islamic populations. The odds are pretty good a liberal judge ruling a short distance from the Harvard campus would favor Harvard. Moreover, Judge Burroughs is a big fan of affirmative action, proclaiming, “race-conscious admissions programs ... have an important place in society and help ensure...colleges and universities...offer a diverse atmosphere that fosters learning...”

Edward Blum was disappointed but, knowing him as I do (and I know him well: I once shared an office with him), I’m sure he is gearing up for Round Two in the First Circuit Court of Appeals. There is a lot of statistical evidence supportive of the SFFA position. For example, an internal Harvard study a few years ago suggested that if strictly academic criteria were used, some 43.04% of those admitted to Harvard would be Asian-Americans, over double the then-actual figure of 18.66%. The failure of the proportion to grow significantly over time also appears suspicious, since the Asian-American share of the population is growing. To me, Harvard’s admissions standards come close to saying, “Asian-Americans typically do well in the classroom, but they tend to be nerds, and we don’t want to be a university of nerds. Classroom learning is fine—but college is partly an excuse to bring kids together to socialize, a gap period before they begin life in the Real World.” Still, Judge Burroughs proclaims, ‘Harvard does not have any racial quotas.’

Edward Blum is indefatigable, but this decision is still a setback for SFFA. My own guess is that the odds of SFFA ultimately prevailing in whole or in part have fallen from 65% to 50%. It could go either way. Blum is also not confining the battle to one front. He is back at his reoccurring attacks on his alma mater, the University of Texas. But his major non-Harvard effort now is against the University of North Carolina. UNC is selective but not as selective as Harvard, and it is a public institution that by law can only take 18% of its undergraduate students from out of state. Legacy admissions, albeit a tangential factor in the Harvard case, is probably not as important at UNC.

Both Harvard and UNC use what they call “holistic” admissions. Objective, easily measurable factual evidence—SAT scores, high school grades and class ranks—play a role but are supplemented and sometimes trumped by personal opinions of admissions officers and committees. Thus athletes get preference over ace musicians on average, the president of the high school student council is considered a better applicant than a wunderkind member of the chess club and, yes, blacks are preferred over Asians. Some schools, notably Cal Tech, reportedly disdain the holistic approach in favor of evaluations based predominantly on quantitatively measurable variables emphasizing academic achievement and promise. It was the move away from the “holistic” approach of the first half of the 20th century that led to the ascendancy of the SAT and, later, ACT tests.

The sordidness of highly selective admissions came out in evidence revealed in the trial proceedings. Money does talk—Varsity Blues was far from the first admissions scandal. Multi-million-dollar actual or potential donor applications received special attention. Can you bribe your way into Harvard? As I read the evidence: Only rarely, if the bribe is big enough (six digit bribes don’t work). The less prestigious the school, the smaller the necessary bribe.

In the final analysis, the substitution of Supreme Court justices Gorsuch and Kavanaugh for Justices Scalia and Kennedy may have more to say about the final outcome than anything else.