On November 17th, 2014, Students for Fair Admissions (SFFA), an organization established and presided over by Edward Blum, filed a complaint against Harvard University in the U.S. District Court for the District of Massachusetts. The plaintiffs in Students for Fair Admissions, Inc., v. President and Fellows of Harvard College seek declaratory judgments that (1) Harvard employs racially and ethnically discriminatory undergraduate admissions policies in violation of Title VI of the Civil Rights Act of 1964, and (2) these policies specifically discriminate against Asian American applicants by imposing quotas to achieve racial balancing.[1]
Several years prior, Blum engineered an unsuccessful lawsuit attacking UT Austin for its affirmative action policies. Although the plaintiff lost her claim of reverse discrimination in Fisher v. University of Texas at Austin, Blum plowed on with his conservative campaign to dismantle affirmative action. This time, Blum has cobbled together a group of plaintiffs who are much more sympathetic: Asian American students and parents who feel shutout by elite universities despite stellar test scores. The mission of the SFFA is to “promote and protect the right of the public to be free from discrimination on the basis of race in higher education admissions” and is comprised of a “coalition of prospective applicants and applicants to higher education who were denied admission…, their parents, and other individuals.”[2]
The complaint seeks relief on six counts: (I) Prejudicial and stereotyping statements made by Harvard admissions officers displays intentional discrimination against Asian Americans;[3] (II) Harvard employs racial-balancing, evidenced by the “remarkable stability” of the racial composition of Harvard’s student body, and this forces minority groups to compete with each other for limited spots;[4] (III) Harvard’s implementation of its affirmative action policy is not “narrowly tailored” because race is used as a defining feature instead of a “plus factor” when evaluating candidates;[5] (IV) Contrary to what Harvard represented in Bakke, it does not use race as a factor only to fill a few remaining seats;[6] (V) Harvard’s admissions process is not narrowly tailored because it does not use available race-neutral alternatives;[7] (VI) The Supreme Court’s holding in Regents of the University of California v. Bakke, affirmed in Grutter v. Bollinger and Fisher v. Texas, that there is a “compelling government interest in using race as a factor in admission decisions in pursuit of diversity” should be overruled.[8]
The complaint cites the gilded credentials of Asian American applicants who were denied admission and argues that Harvard intentionally discriminates against Asian American applicants. Asian Americans are penalized on the personal qualities metric, and, recognizing the phenomenon, college counselors advise Asian Americans to emphasize their personal characteristics that avoid Asian stereotypes.[9] The complaint argues that the inevitable byproduct of these racial classifications is that Asian Americans are stereotyped and defined wholly by their race, both in the admissions process and also, for those who are admitted, while at the university.[10] For a better model, the complaint points to universities like Caltech, or high schools like Hunter College High School, where “race-neutral” admissions leads to Asian American representation of 40-50%.[11]
Harvard filed a motion to dismiss for lack of subject matter jurisdiction, as well as a motion for partial judgment on the pleadings for Counts IV & VI. The court denied the motion to dismiss but granted Harvard’s motion for partial judgment on Counts IV and VI counts. Both SFFA and Harvard then filed motions for summary judgment on the remaining counts. In September 2018, the cross-motions were denied without prejudice.
The trial will begin with opening statements on Monday, Oct. 15th, 2018.
The Supreme Court’s decisions in Bakke, Grutter, Gratz v. Bollinger, and Fisher have established a framework for assessing the legality of affirmative action admissions policies. Any race-based consideration must serve a compelling state interest.[12] The educational benefits derived from racial diversity are a compelling state interest.[13] The court must apply strict scrutiny to determine whether the race-conscious policy is necessary to and narrowly tailored for the achievement of these benefits, but the court will give deference to the university’s own determination on this matter.[14] Grutter made clear that a university cannot use a quota or racial-balancing system – the admissions criteria must be flexible so that each applicant is evaluated as an individual.[15] As a result, universities that wish to use affirmative action have adopted holistic review policies. Finally, the implementation of the policy must also survive strict scrutiny.[16] The university must show that the means chosen to attain diversity are narrowly tailored to that goal and that no workable race-neutral alternatives could produce the same educational benefits.[17] Here, the court will not give deference to the university’s decision.[18]
Harvard will likely be able to demonstrate that its goal in pursuing affirmative action policies is to derive the educational benefits of maintaining a diverse class. Various committees at Harvard have studied the issue of diversity and have concluded that “student body diversity—including racial diversity—is essential to [Harvard’s] pedagogical objectives and institutional mission.”[19] Although relatively stable racial composition may be suspect, Harvard’s conscientious avoidance of quotas, point systems, and otherwise hard numbers indicates its savviness with respect to the Supreme Court’s guidance. Indeed, it is not entirely clear where the boundary of being cognizant of diversity bleeds into racial balancing, but deference to the university’s own determination dispatches this problem.
Harvard will need to expend most of its energy showing that the implementation of its affirmative action policy survives strict scrutiny. In 2017, Harvard charged a committee to study race-neutral alternatives and concluded that eliminating the consideration of race would significantly reduce the diversity of the class and detract from Harvard’s educational goals.[20] However, Harvard undertook studies of race-neutral alternatives only when a lawsuit was imminent, and the court acknowledged the suggestion of bad faith.[21] Nonetheless, the details of how Harvard considered race-neutral alternatives will be examined over the course of the trial. Given the university’s awareness of how the law shapes the contours of its policy, it seems that both the design and the implementation of Harvard’s holistic, but race-conscious, admissions policy will survive strict scrutiny.
On legal grounds, it seems like this lawsuit has not raised any new issues that the court must grapple with. In its affirmative action rulings, the Court has repeatedly upheld affirmative action policies, as long as the university is explicit that the goal is the educational benefit and it avoids quotas. The Court in Bakke actually already looked at Harvard’s admissions plan and found it to be non-discriminatory.[22] Even though the plaintiffs here are different, the legal issues are the same. So this is a battle for public opinion. While it is unlikely that the lawsuit will affect the existing law on affirmative action, it may do serious damage to the public perception of affirmative action. Blum has organized a protest against Harvard to take place the day before the hearing. On the other side, a broad coalition of individuals and social justice organizations have planned a National Solidarity Week of Action for Diversity, culminating in a rally on Oct. 14th to express support for affirmative action policies that enhance educational opportunity. Several authors have already sketched the contours of the push against affirmative action and articulated the strong arguments for affirmative action, including how Asian Americans benefit from these policies.
But it is not enough to repeatedly insist on the benefits of affirmative action. The anger and frustrations of Asian Americans are real and will not disappear after the trial. They have been hurt by the manifestation of implicit biases and stereotyping, but no one has given them the vocabulary or forum to articulate and address these wounds. Unfortunately, Blum has seized on their search for answers and has fed them the largely distracting vocabulary of affirmative action, race-conscious admissions, and reverse discrimination.
The adversarial nature of the courtroom tends to drown out nuanced positions, but despite the limitations, courts may be able to enhance the existing legal framework in order to shape a more equitable admissions processes. There should be stronger oversight over the holistic and individualized review of applicants. While universities that go to the trouble of implementing affirmative action admissions policies probably would like to see a truly diverse incoming class, implicit biases inevitably affect how admissions officers view each applicant. Seeing a check mark next to “Asian/Pacific Islander” lends itself to racial grouping and stereotyping. Implicit biases will not disappear, so the challenge will be how to override them. Just as the Court imposed a requirement of considering race-neutral alternatives, it could also encourage disaggregation by imposing a requirement of using the most feasibly fine-grained identification of race and ethnicity. Data disaggregation involves reporting a larger number of subgroups for any given metric. While this may appear to concern statisticians alone, it is actually a powerful way to subvert stereotyping and racial discrimination.
More fine-grained racial and ethnic identification serves the purpose of holistic review by making the checkboxes themselves more individualized. The Common Application has already taken steps to disaggregate the “Asian/Pacific Islander” checkbox into ten different checkboxes. Beyond the Common App, internal admissions processes should also be implementing these disaggregated markers. However, as previously covered in the Amicus Blog, the Massachusetts state legislature battled over H3361, a bill that “would have required state agencies to report data by individual ethnic group when collecting data on Asian Americans and Pacific Islanders.” The bill failed, but a court’s recognition of the importance of disaggregation could shape the norms of how we talk about identity.
But using the legal framework to improve admissions policies can only take us so far because of the Supreme Court’s squeamishness about confronting systemic racism and historical oppression head-on. The Court hews to “race-blind” jurisprudence, recognizing the legitimacy of educational benefits as a basis for diversity, but not reparatory or systemic goals. It may be defensible to forbid the use of quotas, either because they are actually harmful to the mission of diversity or because they resurface the nation’s painful history of racial exclusion. But to forbid universities from acknowledging this history and correcting it seems perverse. Under the Court’s jurisprudence, proponents of diversifying measures avoid phrases like affirmative action and race-conscious admissions, lest they open themselves up to litigation. Working within the Court’s current framework, an expansion of the meaning of “educational benefits” might give way to a broader, if tacit, acknowledgment of the purposes of diversity. While the Court has thus far supported affirmative action policies, the severely constrained scope of the discussion makes it near impossible to address the complexity of race and affirmative action in the courtroom.
This makes it imperative that the conversation about affirmative action is pulled out of the courtroom. Only then can we have real dialogue about what universities should be doing to address systemic racism and stereotyping. When a university is up against the wall in a lawsuit, neither the university nor supporters of affirmative action can afford to engage in critical assessment of admissions policies because the stakes are so high and the simplistic soundbites so effective. Universities must be proactive and transparent about doing a better job in implementing diversifying admissions policies if they want to avoid the unproductive and draining lawsuits that otherwise will inevitably ensue. Under the current framework, a university must do this delicately to avoid jeopardizing itself legally, but the public’s view of the legitimacy of the admission policy can also provide some insulation against legal action.
The “race-neutral” alternatives that the complaint proposes are good ideas (although to be clear, they are not really race-neutral, as Justice Ginsberg wrote in Fisher, “only an ostrich could regard the supposedly neutral alternatives as race unconscious.”[23]). But steps like diversifying the pipeline, deemphasizing legacy, and providing support to matriculated students are indispensable supplements to race-conscious policies. Universities should also implement internal checks on implicit biases of readers, regardless of how many levels of review take place. And the choices that universities make are felt all the way through the education system, down to high school and elementary school admissions practices. Dissenting in part in Bakke, Justice Brennan wrote, “We cannot…let color blindness become myopia which masks the reality that many ‘created equal’ have been treated within our lifetimes as inferior both by the law and by their fellow citizens.”[24] In its narrow conception of the issue of Harvard’s affirmative action policy, the district court will likely, and should, rule in Harvard’s favor. Holistic admissions policies like Harvard’s have repeatedly been found constitutional, and the law applies similarly here. However, the narrow legal formalism of the courtroom does not allow for meaningful adjudication or discussion of diversity and bias in admissions. So regardless of the outcome of SFFA v. Harvard, universities need to critically reexamine their admissions process if they are at all genuine about their desire for diversity.
[1] Complaint at 1, SFFA v. Harvard, (D. Mass. Nov. 17, 2014) (No. 14 Civ. 14176).
[2] Id. at 7.
[3] Id. at 101–04.
[4] Id. at 104–07.
[5] Id. at 107–09.
[6] Id. at 109–11.
[7] Id. at 112–14. Such alternatives include the use of socioeconomic indicators instead of race, increasing the diversity of the applicant pool by increasing financial aid, scholarships, and targeted recruitment efforts, eliminating legacy and athlete preferences, and eliminating early admission. Id. at 5–6.
[8] Id. at 114–19.
[9] Id. at 43–53, 57–60.
[10] Id. at 88.
[11] Id. at 53–55.
[12] Regents of University of California v. Bakke, 438 U.S. 265, 299 (1978).
[13] See id. at 314–15.
[14] Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
[15] Id. at 336–37.
[16] Fisher v. University of Texas at Austin, 570 U.S. 297, 311 (2013).
[17] Id. at 312–13.
[18] Id. at 311.
[19] Order on Cross-Motions for Summary Judgment at 11, SFFA v. Harvard, (D. Mass. Sept. 28, 2018) (No. 14 Civ. 14176).
[20] Id. at 12–13.
[21] Id. at 39–40.
[22] Regents of University of California v. Bakke, 438 U.S. 265, 316–18 (1978).
[23] Fisher, 570 U.S. at 335.
[24] Bakke, 438 U.S. at 327.