Dear Commons Community,
The U.S. Court of Appeals for the First Circuit yesterday ruled that Harvard University does not discriminate against Asian American applicants. The university’s consideration of race and ethnicity, the court said in a lengthy opinion, is consistent with precedents affirmed by the U.S. Supreme Court.
The ruling was a defeat for Students for Fair Admissions, or SFFA, which sued Harvard in 2014. The group alleged that the university had intentionally discriminated against Asian American applicants; illegally sought to “balance” its incoming classes by race through the use of quotas; considered race as more than a “plus” factor in admissions decisions; and ignored the existence of race-neutral alternatives for achieving diversity. As reported by The Chronicle of Higher Education:
“Lawyers for Harvard and SFFA squared off during an exhausting three-week trial at a federal courthouse in Boston two years ago. Then last fall, Allison D. Burroughs, the federal district judge who heard the case, ruled that Harvard’s race-conscious admissions practices were constitutional, finding no evidence of racial animus.
“Ensuring diversity at Harvard relies, in part, on race-conscious admissions,” she wrote in her opinion. “The use of race benefits certain racial and ethnic groups that would otherwise be underrepresented at Harvard and is therefore neither an illegitimate use of race or reflective of racial prejudice.”
SFFA appealed that decision. A three-judge panel of the federal appeals court heard the group’s arguments in September. It also heard from the Justice Department, which has thrown its weight behind SFFA. During the proceedings, an assistant attorney general told the court that Harvard’s use of race was “expansive” and “pervasive,” in contrast with the University of Texas at Austin’s race-conscious admissions program, which was upheld by the Supreme Court in 2016.
The appeals court was not convinced by those arguments. Its detailed opinion affirms the federal district judge’s finding that Harvard did not violate federal civil-rights laws barring racial discrimination. The university’s narrowly tailored use of race, the court wrote, furthers its compelling interest in student diversity and passes the “strict scrutiny” standard.
Moreover, the court rejected SFFA’s assertion that Harvard uses race in a “mechanical” way, giving a predefined boost to some applicants but not others. “Harvard’s use of race in admissions is contextual, and it does not consider race exclusively,” the court’s opinion says. “Harvard’s process does not weigh race so heavily that it becomes mechanical and decisive in practice.” In other words, the university’s holistic review of applicants is sufficiently holistic.
The appeals court also agreed with the lower court’s conclusion that there was no evidence of racial bias in Harvard’s use of personal ratings of applicants — and that the university had shown that race-neutral alternatives would not be workable.
Harvard officials applauded the court’s ruling. “Today’s decision once again finds that Harvard’s admissions policies are consistent with Supreme Court precedent, and lawfully and appropriately pursue Harvard’s efforts to create a diverse campus that promotes learning and encourages mutual respect and understanding in our community,” Rachael Dane, a spokeswoman for Harvard, said in a written statement. “As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity.”
But the legal saga will almost certainly continue. SFFA, which is also challenging the University of North Carolina at Chapel Hill’s admissions program in a trial that opened in federal court this week, intends to once again push the debate over race-conscious admissions through the doors of the nation’s highest court.
“While we are disappointed with the opinion of the First Circuit Court of Appeals, our hope is not lost,” Edward J. Blum, SFFA’s president, said in a written statement. “This lawsuit is now on track to go up to the U.S. Supreme Court, where we will ask the justices to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities.
Though the Supreme Court has repeatedly upheld the limited use of race in admissions, its ideological balance has shifted over the last few years. If it heard this case on appeal, the court’s conservative majority could undo race-conscious programs at selective colleges — or it could once again defy the pundits who have long predicted affirmative action’s demise.”
This case will be watched closely by colleges all over the country to determine whether they will have to modify their admissions affirmative action programs. As The Chronicle article concludes that with the recent appointment of Justice Amy Coney Barrett, the U.S. Supreme Court’s balance has moved markedly to the conservative right.