Federal Appeals Court Upholds Harvard’s Consideration of Race in Admissions

By Mark Walsh — November 12, 2020 5 min read
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In a case closely watched in K-12 and higher education circles, a federal appeals court on Thursday upheld Harvard University’s use of race as a factor in undergraduate admissions.

“Harvard’s consideration of race is not impermissibly extensive, but considering race is meaningful to Harvard’s admissions process because it prevents diversity from plummeting,” said a unanimous panel of the U.S. Court of Appeals for the 1st Circuit, in Boston.

The ruling sets up a potentially titanic fight in the U.S. Supreme Court over affirmative action in education.

“Our hope is not lost,” said Edward Blum, the president of Students for Fair Admissions, the group behind the challenge. “This lawsuit is now on track to go up to the U.S. Supreme Court where we will ask the justices to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities.”

In 2016, in Fisher v. University of Texas at Austin (Fisher II), the Supreme Court ruled 4-3 to uphold race-conscious admissions at the flagship university.

Justice Anthony M. Kennedy wrote for the majority that “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

The makeup of the Fisher II court did not include Justice Antonin Scalia, who had died after arguments but before the decision, and Justice Elena Kagan, who was recused. Kennedy retired in 2018 and was replaced by Justice Brett M. Kavanaugh, who has a limited record on race in education but was a White House lawyer in 2003 when President George W. Bush’s administration argued for ending affirmative action in education when the Supreme Court considered two cases from the University of Michigan.

(The court struck down Michigan’s undergraduate program because it automatically awarded bonus points to underrepresented minorities, but it upheld the law school’s holistic consideration of race and the idea that achieving racial diversity was a compelling interest.)

The court’s other recent additions, Justices Neil M. Gorsuch and Amy Coney Barrett, don’t have much of a track record on race in admissions but their general conservatism gives comfort to opponents of affirmative action.

No Finding of Racial Stereotyping

The 1st Circuit decision in Students for Fair Admissions v. President and Fellows of Harvard College was written by Judge Sandra Lynch and signed by Chief Judge Jeffrey R. Howard. The third member of the panel that heard the case, Judge Juan R. Torruella, died Oct. 26.

The appeals court affirmed a 2019 decision by a federal district judge in Boston upholding Harvard’s admissions program in the face of the lawsuit arguing that the college’s use of race violated Title VI of the Civil Rights Act of 1964, which bars race discrimination in federally funded programs. The challengers argued that Harvard’s use of racial “tips” at various points in the admissions process discriminates against Asian American applicants, and that a “personal score” that Harvard devises can allow admissions officials to enhance the chances of Black and Hispanic applicants and put Asian Americans at a disadvantage.

In the 104-page appeals court opinion, Lynch went methodically through the factual record, which included a 15-day bench trial and 30 witnesses before the district judge.

The appellate court held that Harvard’s limited use of race survives “strict scrutiny,” the highest form of judicial review, because the university has a compelling interest in racial diversity and used narrowly tailored means to achieve it that were consistent with Supreme Court precedent.

Specifically, the court said that Harvard had conducted a searching review of its use of race and had also found that race-neutral alternatives would not achieve the same results. Under a race-neutral plan proposed by SFFA, Harvard would eliminate “tips” for race but also for legacy admissions and other categories, while increasing tips for low-income status.

“African American representation in Harvard’s admitted class would decrease by about 32 percent” under that race-neutral scenario, the appeals court said, further noting that the proportion of Black students in the admissions class would decrease from 14 percent to 10 percent under the race-neutral model.

For its admitted class of 2024, Harvard reports Asian Americans make up 24.6 percent of students; African Americans 13.9 percent; Hispanic or Latino 11.8 percent; Native Americans 1.8 percent, and Native Hawaiians, 0.3 percent. That would leave non-Hispanic White students at 46.1 percent, although Harvard doesn’t specifically list the White figure on its admissions page “ethnicity” breakdown.

The 1st Circuit court also held that the district court did not err in ruling that Harvard did not intentionally discriminate against Asian American applicants, rejecting claims that admissions officials relied on racial stereotypes about such applicants being more book smart or less assertive that other ethnic groups.

“There was ample non-statistical evidence suggesting that Harvard admissions officers did not engage in any racial stereotyping,” Lynch said.

Harvard, in a statement, said “today’s decision once again finds that Harvard’s admissions policies are consistent with Supreme Court precedent, and lawfully and appropriately pursue Harvard’s efforts to create a diverse campus that promotes learning and encourages mutual respect and understanding in our community. As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity.”

Jin Hee Lee, the senior deputy director of the NAACP Legal Defense and Educational Fund, which filed a brief in support of Harvard, said in a statement that the decision “rightly follows what the Supreme Court has consistently held over the past four decades: that race is an important and permissible consideration among many factors within a holistic admissions process for higher education.”

President Donald Trump’s administration sided with the challengers in the case, arguing in a brief that “the trial record established that Harvard actively engages in racial balancing that Supreme Court precedent flatly forbids.”

A version of this news article first appeared in The School Law Blog.