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Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), No. 19-2005 (1st Cir. 2020)(appeal pending)

The AAUP, together with forty other higher education associations, signed on to an amicus brief prepared by the American Council on Education and filed in the First Circuit Court of Appeals in support of a district court judge’s decision that held that Harvard’s admissions policies do not discriminate against Asian American applicants. 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 AAUP had joined an amicus brief in the district court that argued in favor of the Harvard policy. The district court ruled in favor of Harvard, finding that its policy did not illegally discriminate. The plaintiffs appealed, and the appellate amicus brief again argues that the Harvard policy does not constitute illegal discrimination. A decision on the appeal will likely not be issued until at least late 2020.

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. Therefore, the AAUP joined an amicus brief filed with the district court 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.”

In ruling in favor of Harvard, Judge Burroughs agreed with the amicus brief, 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." 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.

The plaintiffs appealed to the First Circuit Court of Appeals. The AAUP again joined ACE and thirty-nine other higher education organizations in an amicus brief supporting the Harvard policy. The amicus brief on appeal is thematically similar to the earlier brief filed in the case. Among other things, the amicus brief emphasizes that diversity—including racial diversity—advances learning, enriches campus environments, and prepares students to thrive in an increasingly diverse workforce and society. The amicus brief underscores that the Supreme Court permits Harvard, like all colleges and universities, to pursue the version of diversity that best suits their mission and goals, including through the limited consideration of race. Finally, the amicus brief argues that the ordinary burden of proof in Title VI discrimination cases will be upended if courts require universities to disprove any claim of discrimination connected to higher-education admissions, rather than looking to plaintiffs to prove that the defendant acted with “racial animus” against members of a protected class. In addition, the discussion of "institutional academic freedom" appropriately defines this concept in a way that is consistent with judicial deference to institutions on academic matters that include diversity of student admissions, while it also explicitly recognizes academic freedom of faculty and students.



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