Federal court upholds Harvard’s use of affirmative action in admissions

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A federal court has upheld the use of race-based affirmative action in Harvard’s admissions policy, saying that trying to ensure diversity at the Ivy League university is not discriminatory to Asian American applicants.

The case, which drew much media and public attention, was brought by a long-standing critic of affirmative action on behalf of a group of Asian American plaintiffs.

The 130-page ruling Tuesday by Judge Allison Burroughs of the US District Court in Massachusetts went contrary to the predictions of many commentators, who had thought Harvard’s policy vulnerable, the website InsideHigherEd reported.

While Judge Burroughs said Harvard’s approach was not perfect, she said the court would not dismantle a “very fine admissions program that passes constitutional muster solely because it could do better”.

“For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race-conscious admissions,” she wrote in her order.

“Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny. The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences.

“It is this, at Harvard and elsewhere, that will move us, one day, to the point where we see that race is a fact, but not the defining fact, and not the fact that tells us what is important, but we are not there yet. Until we are, race-conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.”

An appeal against the ruling is almost certain and may go all the way to the Supreme Court, which, after the retirement of Justice Anthony Kennedy, lacks a majority of justices with a record of supporting the right of colleges to consider race and ethnicity in admissions.

Meanwhile, another lawsuit challenging affirmative action is getting started, this time against the University of North Carolina at Chapel Hill.

When the Harvard case was wrapped up in February, Judge Burroughs had hinted at weaknesses in the arguments of the plaintiffs as well as Harvard, the InsideHigherEd report said. “They have a no-victim problem,” Burroughs said, referring to the failure of Students For Fair Admissions (SFFA) to introduce direct testimony from a rejected Asian American applicant who could point to Harvard’s admissions policies as discriminatory.

She also told Harvard, “You have a personal rating problem,” referring to the part of the admissions process where personal qualities are considered, and where the odds of Asian American applicants with stellar academic qualifications fell, according to data presented at the trial.

While SFFA said it was suing on behalf of many Asian American students, there was far less focus on (and no testimony from) an Asian American individual who had been rejected. It is unclear how crucial this issue will be when the SFFA goes in appeal, but Harvard’s lawyers have maintained all along that there is no basis for Asian Americans to sue.

The personal ratings issue had resulted in widespread criticism of Harvard, even from some who support the policy to consider race and ethnicity in admissions. The plaintiffs, after years of court fights, obtained documents from Harvard that modeled various considerations in the admissions process. Harvard says the table below is flawed and inaccurate, even if the data come from the university.

The table shows how in a given year, various factors in admissions would have produced different shares of the freshman class. Consideration on academics alone would have yielded a class with more Asian American students than from any other group. But when other factors (such as status as an alumni child or athlete), a personal rating, and finally race and ethnicity are factored in, the share of Asian Americans slides.

In its closing arguments, Harvard said the table looks bad only if one thinks the only key factor in admissions should be academics. But the university argued that this is not so. It conceded that this might be true at a college where the applicants include many who could not do the work to succeed. But at Harvard, the vast majority of applicants could not only succeed but also thrive at the university—with high-school backgrounds that would get them admission to the vast majority of colleges and universities. In this scenario, nonacademic factors may well be decisive, because there is so little to separate most applicants in pure academics. The university said SFFA had failed to appreciate this point.

SFFA zeroed in on the personal rating issue in its final brief for the court. It argued that the large shifts in the ethnic and racial makeup of the class once the personal factors come into play can only be explained by illegal discrimination.

If the case does reach the Supreme Court, it could result in the sixth Supreme Court decision on the consideration of race in admissions. The Harvard case would be the first time such a case involved a private college. Below are the five previous instances and the rulings therein.

  • 1978: In Regents of the University of California v Bakke, the court ruled that the medical school at the University of California, Davis, could not reserve some slots with separate admissions standards for minority applicants. But the court also ruled that colleges could consider race and ethnicity in admissions decisions in ways that did not create quotas.
  • 2003: In Gratz v Bollinger, the court ruled that the University of Michigan at Ann Arbor had unconstitutionally used an undergraduate admissions system in which underrepresented minority applicants received points on the basis of their ethnic or racial background.
  • 2003: In Grutter v Bollinger, the court ruled that the University of Michigan’s law school was within its constitutional rights to consider applicants’ race and ethnicity because it did so through a “holistic” review and not by simply awarding points based on race and ethnicity.
  • 2013: In Fisher v University of Texas at Austin, the court ruled that lower courts needed to apply “strict scrutiny” and not give colleges deference in reviews of challenges to the consideration of race and ethnicity in admissions decisions.
  • 2016: In another round of Fisher v University of Texas at Austin, like the 2013 ruling involving the same rejected student, the Supreme Court upheld the university’s policies but said it had “a continuing obligation” of “periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests.”

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