Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.) (1st Cir. Nov. 12, 2020)

In a great win for higher education, the First Circuit Court of Appeals affirmed that Harvard’s admissions process, which considers race as one factor among many when reviewing applicants, satisfies strict scrutiny by being narrowly tailored to achieve the compelling interest of diversity in its student body. The appellate decision arose from plaintiffs’ appeal of a district court judge’s decision that held that Harvard’s admissions policies do not discriminate against Asian American applicants. The AAUP, together with forty other higher education associations, signed on to an amicus brief, prepared by the American Council on Education in support of the district court’s decision. The First Circuit upheld the district court and found that Harvard’s race-conscious admissions program survives strict scrutiny and does not violate Title VI of the Civil Rights Act of 1964. Harvard identified the specific, compelling goals that it achieves from diversity. The First Circuit also held, giving no deference to Harvard, that its admissions program is narrowly tailored and that it legitimately concluded that the alternatives were not workable.

The current case involving Harvard is the most recent in a series of lawsuits argued over the past four decades aimed at eliminating race as one factor among the many that universities can consider when choosing whom to admit. The case arose in 2014 when Students for Fair Admission (“SFFA”) filed a lawsuit alleging that Harvard College discriminates against Asian American students in its admissions processes. In its complaint, SFFA claims Harvard uses “racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program at Harvard College in violation of Title VI of the Civil Rights Act of 1964.” Specifically, the suit alleges that Harvard’s use of race in its admissions process holds Asian American applicants to a higher standard, that Harvard engages in “racial balancing,” that it uses race as a dominant factor in its admissions decisions, and that it overlooks race-neutral alternatives when choosing which students to admit. In response to the claims, Harvard has consistently denied that it has engaged in racial discrimination or suppressed the number of Asian American students. Instead, Harvard says that it reviews every aspect of each applicant’s background and experience in order to develop a diverse student body that university officials say helps better prepare undergraduates to succeed in a society where working with people who have different life experiences, perspectives, and backgrounds is increasingly essential and that this review process comports with federal law and a string of previous US Supreme Court rulings. A non-jury trial was held in October 2018, and post-trial parties completed post-trial submissions to the court in early 2019.

For many years, the AAUP has advocated in favor of affirmative action in higher education, emphasizing the educational value of diversity, through amicus briefs in Supreme Court cases from Regents of the University of California v. Bakke in 1978 to Fisher v. Texas in 2016 and through AAUP policy. See AAUP, Affirmative Action Plans: Recommended Procedures for Increasing the Number of Minority Persons and Women on College and University Faculties, AAUP, Policy Documents and Reports, 11^th ed. (Baltimore: Johns Hopkins University Press, 2015) 157–63. Therefore, the AAUP has argued in both the district and appeals courts that “a diverse student body is essential to the educational objectives of colleges and universities, and that each institution should be able to exercise its academic judgment to determine within broad limits the diversity that will advance its individual mission.”

The AAUP had joined an amicus brief in the district court that argued in favor of the Harvard’s admissions policy. In ruling in favor of Harvard, the district court found that properly implemented race-conscious admissions programs “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." The district court emphasized that while Harvard's admissions approach was "not perfect . . . the court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better." SFFA appealed to the First Circuit Court of Appeals.

In finding for Harvard, the appeals court found that Harvard's "limited use of race" in admissions decisions "survives strict scrutiny," the legal standard required. "Harvard admits that it considers race in its admissions process and at times provides tips to applicants based on their race. Strict scrutiny applies regardless of racial animus. Strict scrutiny requires that the university's use of race must further a compelling interest," the decision said.

"Harvard has identified specific, measurable goals it seeks to achieve by considering race in admissions," the decision said. The goals are: "1) training future leaders in the public and private sectors as Harvard's mission statement requires; (2) equipping Harvard's graduates and Harvard itself to adapt to an increasingly pluralistic society; (3) better educating Harvard's students through diversity; and (4) producing new knowledge stemming from diverse outlooks."

The decision added, "Testimony at trial also supported Harvard's interest in diversity. The district court made a factual finding that 'Harvard values and pursues many kinds of diversity within its classes, including different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities.' It found that 'Harvard tries to create opportunities for interactions between students from different backgrounds and with different experiences to stimulate both academic and non-academic learning.' It based these findings on the testimony of "all of the Harvard admissions officers, faculty, students, and alumni that testified at trial."

"Harvard's interest in student body diversity and its consideration of race to attain it is also not unique. Many other colleges and universities consider an applicant's race, in addition to many other factors, in admissions. And the business community has communicated its interest in having a well-educated, diverse hiring pool both in this case and in the prior governing Supreme Court cases."

The appeals court then rejected the argument of SFFA that the university was engaged in determining how many Asian Americans to admit—regardless of the qualities of a given pool of applicants. The decision found, "The amount by which the share of admitted Asian American applicants fluctuates is greater than the amount by which the share of Asian American applicants fluctuates. This is also true for Hispanic and African American applicants. It is the opposite of what one would expect if Harvard imposed a quota. The fact that Harvard's admitted share of applicants by race varies relatively little in absolute terms for the classes of 2009 to 2018 is unsurprising and reflects the fact that the racial makeup of Harvard's applicant pool also varies very little over this period. The district court properly concluded that Harvard does not utilize quotas and does not engage in racial balancing."

Finally, the appeals court said that Harvard's use of holistic admissions—in which candidates are evaluated based on everything in their records—was important. "SFFA's contention that Harvard elevates racial diversity above other types of diversity is not supported by the evidence. Harvard has demonstrated that it values all types of diversity, not just racial diversity," the decision said. "Harvard's use of race in admissions is contextual and it does not consider race exclusively. Next, Harvard's process does not weigh race so heavily that it becomes mechanical and decisive in practice. Harvard's undergraduate admissions program considers race as part of a holistic review process. This use was previously praised by the Supreme Court as a way of considering race in a non-mechanical way."

It is likely that SFFA will submit a writ of certiorari to the US Supreme Court. We will keep you apprised of the status of this important case.