Affirmative action: Challenge to Harvard’s admissions practices hits federal appeals court

A federal appeals court will hear a long-running challenge to college affirmative action policies on Wednesday, nearly six years after the case against Harvard began and as America confronts intensifying racial divisions.

The lawsuit was initiated on behalf of Asian Americans by a conservative advocate who has long opposed racial policies that have primarily benefited Blacks and Hispanics. The US Department of Justice joined the lawsuit, siding with the challengers to Harvard, after President Donald Trump took office.

Wednesday’s oral arguments before a Boston-based US appeals court move the case closer to a showdown at the US Supreme Court, which first endorsed racial affirmative action designed for campus diversity in 1978 by a 5-4 vote. The court has continued to narrowly uphold admissions programs that consider a student’s race, in cases from Michigan in 2003 and Texas in 2016.

Because of the prevalence of affirmative action practices nationwide, the lawsuit has been closely watched from the start and has developed greater relevance as the country focuses on systemic racism, newly ignited by the May 25 police killing of George Floyd in Minneapolis. Trump has exacerbated racial tensions with his rhetoric and administration actions, including a recent announcement that the federal government would be ending racial sensitivity training in federal agencies.

In August, the administration said an investigation had found that Yale is also discriminating against Asian American applicants, and it ordered the school to stop the consideration of race. Yale contends the allegations are baseless.

Last fall, US district judge Allison Burroughs found no unlawful discrimination at Harvard, after a three-week trial that had drawn an overflow crowd and laid bare the elite school’s efforts to recruit racial minorities, as well as its usually guarded practices favoring connections to big donors and esteemed alumni.

Testimony revealed the “tips” in the screening process that favor legacies and athletes, students who overcome great hardship or even those studying fading subjects such as classical Greek.

The group that has sued Harvard, Students for Fair Admissions, argues that programs boosting the prospects of traditionally disadvantaged Blacks, Hispanics and Native Americans unlawfully discriminate and that diversity should be achieved through race-neutral means such as consideration of family income.

Students for Fair Admissions, which is appealing the lower court decision, contends Harvard imposes “a racial penalty” on Asian Americans. Harvard rejects the contention, saying Asian Americans fare well under its system and noting that in 1978 when affirmative action was upheld, the justices favorably cited the Harvard model.

In the 1978 decision, Regents of the University of California v. Bakke, the high court allowed colleges and universities to consider race as a “plus” factor among many criteria in admissions but forbade quotas.

Groups that have long opposed race-based policies, such as the Pacific Legal Foundation and Center for Equal Opportunity, along with the Trump administration, are siding with Students for Fair Admissions.

Harvard, meanwhile, has drawn supporting “friend of the court” briefs from universities across the country, civil rights organizations and large companies that rely on a diverse workforce.

Decision rested on Supreme Court precedent

The Harvard controversy will be heard by a three-judge panel of the Boston-based 1st US Circuit Court of Appeals. On the panel for the teleconference arguments, which will be livestreamed, are Chief Judge Jeffrey Howard, a 2002 appointee of President George W. Bush; Juan Torruella, a 1984 appointee of President Ronald Reagan; and Judge Sandra Lynch, a 1995 appointee of President Bill Clinton.

Students for Fair Admissions is appealing Burroughs’ October 2019 decision rejecting arguments that Harvard unlawfully discriminated and could gain diversity through nonracial factors, such as a family’s economic status.

“Harvard has demonstrated that there are no workable and available race-neutral alternatives, singly or taken in combination that would allow it to achieve an adequately diverse student body while still perpetuating its standards for academic and other measures of excellence,” Burroughs wrote.

Echoing US Supreme Court decisions, she said, “Programs that take account of an applicant’s race hold 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.”

Harvard’s policies

The Harvard case was engineered by Edward Blum, a conservative advocate who previously — and unsuccessfully — had used White plaintiffs to challenge campus affirmative action. He filed the case in 2014 under Title VI of the 1964 Civil Rights Act, which prohibits racial bias at schools that receive federal funds.

In creating Students for Fair Admissions and seeking out Asian American students for his effort, Blum argued that subjective screening practices inflate the chances for Blacks and Hispanics and put Asian Americans at a disadvantage.

Harvard scores applicants on various academic and extracurricular categories, including an open-ended “personal” category. Students for Fair Admissions contends that admissions officers stereotyped Asian American applicants as “book smart” and “one-dimensional,” leading to lower “personal” scores that lessened their chances of a place at the storied Cambridge, Massachusetts, campus.

No Asian American students testified at trial for Students for Fair Admissions, and Asian Americans are not united in the case; some Asian American student and advocacy organizations are siding with Harvard.

“What Harvard will not admit (but the record shows) is that race is not only an important factor, it is the dominant consideration in admitting Hispanics and African Americans,” William Consovoy, who represents Students for Fair Admissions, argues in his written filing to the appeals court.

Consovoy, a former law clerk to Supreme Court Justice Clarence Thomas, has been involved in the Harvard lawsuit from its early days. Since Trump took office in 2017, Consovoy has also become one of the President’s lead personal lawyers and is now helping to shepherd Trump campaign litigation against some state mail-in ballot practices.

Consovoy will be supported in Wednesday’s hearing by the Department of Justice, which similarly contends Asian Americans lose out under the Harvard admissions practices. The Justice Department has targeted the “personal rating,” which, it says, “consistently and inexplicitly produces poorer scores for Asian Americans than for other applicants.”

Burroughs had found only a “slight numerical disparity” in those ratings and no evidence of discrimination by Harvard.

Harvard will be represented on Wednesday by Seth Waxman, an appellate advocate who was US solicitor general in the Clinton administration. “Harvard considers race as one factor among many and never in a mechanical way,” he wrote in the school’s brief.

Harvard begins with a pool of 40,000 applicants for an eventual freshman class of 1,600. The college has stressed that it could fill that class completely with applicants who hold perfect standardized test scores and perfect high school grades but that it wants to go beyond such dimensions to an array of extracurricular credentials and life experiences.

“In addition to valuing academic strength,” Harvard lawyers write, “Harvard seeks to admit a class of students who will significantly contribute to and benefit from the educational experience on campus.”

For the new Class of 2024, Asian Americans make up 24.6%, African Americans 13.9%, Latinx 11.8%, and Native Americans and Native Hawaiians, 2.0%. The remaining category, 47.7%, is overwhelmingly White students.

Those percentages have shifted slightly in recent years.

Most briefs in the case of Students for Fair Admissions v. Harvard were filed before late May and the fresh national turmoil over race.

But a “friend of the court” brief written by the NAACP Legal Defense Fund on behalf of a broad coalition of student groups at Harvard touched on the benefit of counteracting the usual “hypersegregation” of Black and Latinx students today.

The NAACP Legal Defense Fund recounted an episode during which a student had said she understood the toll of police brutality through deeper conversations with her Black roommate.

Diversity at Harvard, the NAACP Legal Defense Fund asserted, “helps to create an environment where false racial stereotypes or discrimination are more likely to be recognized and diminished.”