Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), Civil Action No. 14-cv-14176-ADB, 2019 U.S. Dist. LEXIS 170309 (D. Mass. Sep. 30, 2019)

In a much anticipated case, Judge Allison Burroughs of the US District Court in Massachusetts ruled that Harvard’s admissions policies do not discriminate against Asian American applicants. The AAUP joined an amicus brief in support of the Harvard policy, prepared by the American Council on Education (ACE) and joined by thirty-six higher education organizations. The brief argued 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.” Judge Burroughs agreed, noting 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 case arose in 2014 when 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, 11th ed. (Baltimore: Johns Hopkins University Press, 2015) 157–63.

The amicus brief argued that holistic review (of applications) remains a cornerstone for race-conscious admissions because it gives each applicant individualized consideration and reduces no one to her race. SFFA’s lawsuit, in substance, asks the court to require fundamental changes to university admissions processes and to mandate a more mechanical process in which educators’ ability to choose which academic and other criteria they wish to use, weigh and apply play next to no role. The amicus brief argued that “that shift would undermine the recognized freedom of a university to assemble a class that, in the university’s judgment, will best advance that university’s particular mission.” The amicus also pointed out that Harvard’s holistic review (of applications) is supported by Supreme Court precedent. “Because the holistic review focuses on individual applicants . . . consideration of race as one aspect of this process is permissible”; it does not treat “an applicant’s race or ethnicity [as] the defining feature of his or her application.” Grutter v. Bollinger, 539 U.S. at 244, 337. Finally, the brief argued that the court should reject SFFA’s effort to upset decades of Supreme Court precedent that has approved of holistic and individualized admissions processes, as “a victory for plaintiff could upend this evolved and evolving system. In a nation that is more connected and racially and ethnically diverse than ever, such an outcome would deprive many students of the critical benefits of campus diversity and thus education they will need as citizens and leaders in the 21st century.”

In the decision finding that Harvard did not discriminate, the 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." The judge wrote in her conclusion,

For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions. 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.



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