Harvard Defeats Suit Seeking to Bar Race-Conscious Admission
Harvard banners hang outside Memorial Church on the Harvard University campus in Cambridge, Massachusetts, U.S.(Photographer: Michael Fein/Bloomberg)

Harvard Defeats Suit Seeking to Bar Race-Conscious Admission

(Bloomberg) -- Harvard University defeated an anti-affirmative action group’s lawsuit to stop the school from using race as a factor in admissions, in a ruling that’s likely to be challenged all the way to the U.S. Supreme Court.

A federal judge on Tuesday said the nation’s oldest college doesn’t discriminate against Asian-Americans and that its consideration of race as one criterion among many in its admissions decisions is lawful. The suit, brought in 2014 by Students for Fair Admissions, claimed that Harvard illicitly engaged in “racial balancing” by artificially limiting Asian-Americans’ numbers and favoring African-American, Latino and white applicants.

“The court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better,” U.S. District Judge Allison Burroughs said in a 130-page ruling.

The decision will be appealed. Students for Fair Admissions is led by Edward Blum, a persistent and vigorous critic of race-conscious admissions who has led multiple legal challenges to affirmative action. For just as long, the Supreme Court has upheld affirmative action in student selection, but the court has grown more conservative in recent years and in a new review may look less favorably upon the practice.

The Trump administration joined the battle in August 2018, when it claimed in a filing that Harvard’s admissions process was “infected with racial bias” and that public funds, which the college draws, shouldn’t be used to “finance the evil of private prejudice.” The Justice Department has also probed possible bias in admissions at Yale University.

Harvard said in a statement that the ruling “unequivocally affirms that Harvard does not discriminate on the basis of race in its admissions process, and that Harvard’s pursuit of the diverse student body central to its educational mission is lawful.” It said the decision “represents a significant victory not merely for Harvard, but also for all schools and students, for diversity, and for the rule of law.”

“Students for Fair Admissions is disappointed that the court has upheld Harvard’s discriminatory admissions policies,” Blum said in a statement, vowing to appeal.

Burroughs concluded that Harvard’s admission process complies with standards set by the Supreme Court, which, she noted, said colleges can consider race only after making “a reasoned and principled articulation of concrete and precise goals for its race-conscious admissions program. Among those goals, she said, are destroying racial stereotypes, preparing students for an increasingly diverse workforce and society, and providing an “educational environment that fosters the robust exchange of ideas.”

Without such practices, she said, “racial diversity at Harvard would likely decline so precipitously that Harvard would be unable to offer students the diverse environment that it reasonably finds necessary to its mission.”

The judge also found that Harvard’s admissions plan is “narrowly tailored” and does not “unduly” burden Asian-American applicants. She found “no evidence of discrimination” in the personal ratings given to such students, a central part of SFFA’s case.

SFFA, relying on a statistical analysis, argued that Asian-Americans were less likely to get into Harvard than other minority groups, though they scored higher than other racial and ethnic groups on many objective measures, including test scores, academic achievement and extracurricular activities. The group said that in admissions data from 1995 to 2013, Asian-Americans had the lowest acceptance rate of any group, at 8.1%, compared to 10.6% for Hispanic students, 13.2% for African-Americans and 11.1% for whites.

Read More: Challenge to Race-Conscious Admissions at UNC Moves Forward

The group pointed to a 2013 internal report by Harvard’s own Office of Institutional Research, which, it said, showed that Asian-Americans would make up 43.4% of the admitted class if they were judged purely on academic merit. They now account for about 23% of the class, and 5.6% of the U.S. population. The university has noted that the percentage of Asian-Americans in the admitted class has grown by 29% in the past decade.

The judge rejected SFFA’s argument, saying Harvard used race “in a flexible, non-mechanical way” and considered it “as a ‘plus’ factor in the context of individualized consideration of each and every applicant.”

Burroughs also turned aside SFFA’s claim that Harvard discriminated by giving Asian-Americans a lower personal rating, compared with those for black, Hispanic and white applicants. SFFA also said Harvard engaged in “racial balancing” by putting a quota on the number of Asian Americans admitted to the school -- another argument she rejected.

“There is no evidence of any discriminatory animus or conscious prejudice,” Burroughs wrote. “To the contrary, certain statistics can be interpreted to suggest that Harvard’s admissions process unintentionally favored some subsets of Asian Americans,” including those who are athletes or the children of alumni and major donors.

The Harvard suit is the latest in a long line going back to the 1978 Bakke decision by the Supreme Court that struck down racial quotas at a University of California medical school. In that ruling, the court praised Harvard’s process because it considered a student’s race among an array of factors including academics, extracurricular activities and socioeconomic background. It went on to ratify the use of race in subsequent decisions.

Genevieve Bonadies Torres, an attorney with the Lawyers’ Committee for Civil Rights Under Law, which represented Harvard students and alumni who support affirmative action, celebrated the Harvard ruling.

“We’re encouraged that the court has upheld the lawfulness of race-conscious admissions and the critical importance of a diverse student body that it promotes,” she said.

Toward the end of the trial, the judge let eight current or former Harvard students testify about what race-conscious admissions meant to them. Sally Chen, a Chinese-American senior, said she had attended a public school in San Francisco that was overwhelmingly Asian-American and that the school’s college counselor advised her not to write about her ethnicity in her essay.

“I decided to write about being Chinese-American and being from a working-class immigrant family precisely because I felt like stories like mine were fading under this model minority myth,” Chen told the court. “I think that there is no way in which flat numbers and a resume could have gotten across how much of a whole person that I am.”

For its part, SFFA didn’t call any Asian-American students to the witness stand in last year’s trial.

In her ruling, the judge cautioned that if race and ethnicity were removed from the admissions process, as SFFA sought, there would be consequences for all minority students. Ultimately, the judge added, the benefits of diversity “will foster the tolerance, acceptance and understanding that will ultimately make race conscious admissions obsolete.”

Burroughs did call for some change, saying the process would probably benefit from “maintaining clear guidelines on the use of race in the admissions process, which were developed during this litigation, and monitoring and making admissions officers aware of any significant race-related statistical disparities in the rating process.”

©2019 Bloomberg L.P.

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