Law & Courts

U.S. Supreme Court Is Asked to Take Up Harvard’s Consideration of Race in Admissions

By Mark Walsh — February 25, 2021 3 min read
Rowers paddle along the Charles River past the Harvard University campus in Cambridge, Mass. on March 7, 2017.
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Challengers of Harvard University’s use of race in admissions on Thursday filed a much-anticipated appeal to the U.S. Supreme Court, urging the justices to overrule a key 2003 precedent that has allowed K-12 schools and colleges to sometimes consider race to achieve student body diversity.

“That Harvard engages in racial balancing and ignores race-neutral alternatives … proves that Harvard does not use race as a last resort,” says the appeal filed by Students for Fair Admissions, which argues that the Ivy League institution’s admissions policies penalize Asian-American applicants.

The group is appealing a November 2020 decision by a panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, which agreed with a trial court that Harvard’s use of race was limited and was used to keep Black and Hispanic enrollment from “plummeting.”

In its appeal in Students for Fair Admissions v. President and Fellows of Harvard College, SFFA argues that Harvard is “obsessed with race” and its undergraduate admissions policies amount to “flagrant violations” of Title VI of the Civil Rights Act of 1964, which bars discrimination based on race and other factors in federally funded programs.

The group urges the high court to accept review in the case and use it to overrule its 2003 decision in Grutter v. Bollinger, which upheld the University of Michigan law school’s holistic use of race in admissions and reaffirmed that achieving racial diversity is a compelling governmental interest.

The group called on the court to accept review both because of Harvard’s place at the top of the American higher education system but also because of the nationwide importance of the debate over the use of race in education.

“[I]t isn’t just any university,” the appeal says. “It’s Harvard. Harvard has been at the center of the controversy over ethnic- and race-based admissions for nearly a century.”

The brief discusses Harvard’s restrictions on Jewish applicants in the 1920s and the attention the court gave to Harvard’s use of race in the 1970s when it decided the landmark Regents of the University of California v. Bakke case, which struck down racial quotas at UC-Davis but endorsed the diversity rationale for race in admissions.

More broadly, the appeal argues, the Grutter decision “sustains admissions programs that intentionally discriminate against historically oppressed minorities. Jewish students were the first victims of holistic admissions, and Asian-Americans are the main victims today.”

The appeal continues: “This discrimination is not news to Asian-American high-schoolers: An entire industry exists to help them appear ‘less Asian’ on their college applications.”

The Harvard case is being watched in the K-12 sector both because of its impact in the world of college counseling and admissions and because it may impact the relatively few remaining elementary and secondary programs that take race into account after the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District. That ruling sharply curtailed the ways school districts could voluntarily take account of race in assigning students to schools.

In a statement, Harvard said that “as earlier court decisions have confirmed, our admissions policies are consistent with Supreme Court precedent. We will continue to vigorously defend the right of Harvard College, and every other college and university in the nation, to seek the educational benefits that come from bringing together a diverse group of students.”

Former-President Donald Trump’s administration supported SFFA’s challenge in the 1st Circuit, but President Joe Biden’s administration is not bound by that and would be more likely to support Harvard. In early February, the U.S. Department of Justice dropped a lawsuit against Yale University over the use of race in admissions that the Trump administration had filed.

On Thursday, SFFA filed its own lawsuit challenging Yale’s admissions policies as discriminatory against Asian-Americans. Yale has defended its admissions program.

But the Harvard case is much farther along, and the justices could decide by sometime this spring whether to take up the case.

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