Suits Challenge Race in Admissions at Harvard, UNC-Chapel Hill

By Mark Walsh — November 17, 2014 4 min read
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The group behind the challenge to affirmative action at the University of Texas at Austin filed lawsuits Monday challenging the consideration of race in admissions at Harvard University and the University of North Carolina at Chapel Hill.

The suits were organized by the Project on Fair Representation and name as plaintiffs a new group, called Students for Fair Admissions, as well as an unidentified Asian-American applicant rejected for admission to Harvard and an unidentified white applicant turned down by UNC.

“These two lawsuits are the first of what are expected to be several similar challenges to other competitive colleges that continue to unconstitutionally use racial preferences in admission decisions,” Edward Blum, the director of the Washington-based project, said in a statement.

The suits allege that both universities’ undergraduate admissions practices do not meet the strict scrutiny standard for race-based admissions called for in the U.S. Supreme Court’s 2013 decision in Fisher v. University of Texas at Austin. Blum’s group was behind the challenge to the use of race at UT. On remand, a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, once again upheld the Texas plan in a July ruling, and the full 5th Circuit Court last week voted against rehearing the case.

The suit against Harvard alleges that the Cambridge, Mass.-based university discriminates against Asian-American applicants and is using race for far more than a “plus factor” in a holistic admissions program.

The unidentified Asian-American is a daughter of first-generation parents who immigrated from China. She ranked first in her high school class and received perfect scores on the ACT and on two SAT II subject tests, the suit says. Still, she was rejected for the fall 2014 entering class, it says.

The 120-page complaint in Students for Fair Representation v. President and Fellows of Harvard College alleges that the university’s current admissions policies have their roots in Harvard’s documented efforts for many years beginning in the 1920s to limit the number of Jewish students in its ranks.

The suit even questions the “Harvard plan” of holistic admissions cited favorably by Justice Lewis F. Powell Jr.'s controlling opinion in Regents of the University of California v. Bakke, the 1978 landmark decision that said achieving racial diversity was a compelling interest for the limited consideration of race in admissions.

“The admissions plan Harvard advocated for in Bakke that promised to treat each applicant as an individual has always been an elaborate mechanism for hiding Harvard’s systematic campaign of racial and ethnic discrimination against certain disfavored classes of applicants,” the suit contends.

The suit against Harvard is based on Title VI of the Civil Rights Act of 1964, which prohibits race discrimination by institutions receiving federal funds.

In a written statement, Robert Iuliano, Harvard’s general counsel, noted that Justice Powell’s Bakke opinion cited to the Harvard College plan “in describing a legally sound approach to admissions.”

“Then and now, the College considers each applicant though an individualized, holistic review having the goal of creating a vibrant academic community that exposes students to a wide-range of differences: background, ideas, experiences, talents and aspirations,” Iuliano said. “The university’s admissions processes remain fully compliant with all legal requirements and are essential to the pedagogical objectives that underlie Harvard’s educational mission.”

UNC Suit

The 65-page complaint in Students for Fair Representation v. University of North Carolina alleges that the public university’s policies violate the equal-protection clause of the 14th Amendment, as well as Title VI. The suit was filed on behalf of an unidentified white applicant rejected for admission this year who graduated near the top of his class at a top-ranked high school in North Carolina and had an SAT score of 2180 out of 2400.

The suit says “UNC-Chapel Hill’s racial preference for each underrepresented minority student (which equates to a penalty imposed upon white and Asian-American applicants) is so large that race becomes the defining feature of his or her application.”

“Only using race or ethnicity as a dominant factor in admissions decisions could, for example, account for the disparate treatment of high-achieving Asian-American and white applicants and underrepresented minority applicants with inferior academic credentials,” the suit adds.

Rick White, the associate vice chancellor for communications and public affairs at UNC-Chapel Hill, said in a statement, “The university stands by its current undergraduate admissions policy and process. Further, the U.S. Department of Education’s Office for Civil Rights determined in 2012 that UNC-Chapel Hill’s use of race in the admissions process is consistent with federal law.”

White noted that UNC-Chapel Hill had filed a friend-of-the-court brief in the Fisher case in the Supreme Court, which said “the university continues to affirm the educational benefits diversity brings to students, as well as the importance of preparing students for a diverse society and assuring a pool of strong state leaders by admitting undergraduates from every background.”

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