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Litigation News

Spring 2021, Vol. 46, No. 3

Court Upholds Race-Conscious Admissions Program

Josephine Bahn and Matthew Sinon Mulqueen


  • Program found nondiscriminatory under strict scrutiny.
Court Upholds Race-Conscious Admissions Program
Terraxplorer via Getty Images

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A federal appellate court upheld Harvard College’s race-conscious admissions program because it relied on factors beyond an individual applicant’s race. Specifically, the school created a narrowly tailored admissions program that did not violate Title VI of the Civil Rights Act of 1964 and that remained consistent with precedent. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the appeals court held that “the statistical evidence did not show that Harvard intentionally discriminated against Asian Americans.” In its ruling, the court affirmed that the admissions program was not discriminatory against Asian American applicants because non-race factors, such as academic performance, extracurricular activities, and community involvement were considered during the admissions process.

Precedent Supports Use of Targeted Race-Based Considerations in Admissions Programs

As a recipient of federal funds, Harvard is subject to Title VI. That statute prohibits institutions such as Harvard from discriminating against individuals “on the ground of race, color, or national origin.” Title VI’s protections are coextensive with the Equal Protection Clause of the Fourteenth Amendment.

U.S. Supreme Court precedent currently supports the limited use of race in admissions processes to promote diversity in the classroom. While the Court rejected a university’s use of racial quotas in Regents of the University of California v. Bakke, cases since that decision have approved of race-conscious admissions programs that withstand strict scrutiny. Strict scrutiny requires that the university’s use of race must further a compelling interest and be narrowly tailored to do so.

In Grutter v. Bollinger, for example, the Court held that a law school’s interest in attaining the educational benefits of a diverse student body was, in and of itself, compelling. The Court also held that the law school narrowly tailored its admissions program to that interest by considering race “as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.”

The Court revisited these issues in a pair of decisions from 2013 and 2016Fisher v. University of Texas at Austin (Fisher I and Fisher II). In Fisher I, the Court explained that whether a university’s asserted interest in diversity is a constitutionally acceptable compelling interest requires the university to support the assertion with evidence. The Court also held that narrow tailoring requires a reviewing court to satisfy itself that no workable race-neutral alternatives would produce the educational benefits of diversity.

In Fisher II, the Court concluded that a university demonstrated a sufficiently compelling interest by identifying specific types of educational benefits flowing from diversity, including promoting cross-racial understanding, breaking down racial stereotypes, fostering a robust exchange of ideas, and cultivating “a set of leaders with legitimacy in the eyes of the citizenry.” The university noted these benefits in a substantial written report issued after a year-long period of study.

Harvard College’s Admissions Process

In any given year, Harvard receives around 35,000 applications and admits approximately 1,600 students. Given this tight competition, Harvard argued that its rigorous coursework requires it to look beyond an applicant’s ability to succeed academically and to also look at those candidates who excel in other areas in order to award admission to its prestigious institution. The Harvard admissions program includes a review process where ratings are given based on factors including academic ability, extracurricular activities, athletic pursuits, teacher and guidance counselor recommendation letters, personal factors of the applicant, including likability and kindness, and an overall assessment.

Within the overall assessment rating, an applicant’s race is taken into consideration, and the factor can be considered a plus (called a “tip” in Harvard’s program) when determining whether to admit a candidate. Specific tips include a candidate’s race, ethnicity, legacy status, and socioeconomic status.

Documenting Harvard’s Interest in Diversity

In 2015, Harvard created a committee to study the educational benefits of a diverse student body. The committee produced a report that was designed, in part, to articulate those benefits as required by Supreme Court precedent (Khurana Report). The Khurana Report outlined several categories of specific benefits obtained through diversity: “1) training future leaders in the public and private sectors as Harvard’s mission statement requires; 2) equipping Harvard’s graduates and Harvard itself to adapt to an increasingly pluralistic society; 3) better educating Harvard’s students through diversity; and 4) producing new knowledge stemming from diverse outlooks.”

In 2017, Harvard convened a committee to study race-neutral alternatives to the school’s tipping system. After considering these alternatives, the committee produced a report concluding that they would not work at Harvard, for various reasons (Smith Report).

District Court Finds No Evidence of Discrimination by Harvard’s Admissions Practices

The Students for Fair Admissions (SFFA) challenged the inclusion of Harvard’s race-based tipping factors in the admissions process, alleging that the review process discriminated against Asian Americans by not considering an applicant’s educational performance and extracurricular activities alone in determining an applicant’s admission or denial to Harvard. SFFA, a 501(c)(3) nonprofit organization, alleged that Harvard engaged in racial balancing of its undergraduate class, impermissibly used race as more than a “plus” factor in admissions decisions, ignored workable race-neutral alternatives, and intentionally discriminated against Asian American applicants.

In 2019, following a 15-day bench trial, the U.S. District Court for Massachusetts ruled against the student group and held that although the admissions review process was “not perfect,” it served “a compelling, permissible, and substantial interest” that was narrowly tailored to achieve diversity. The trial court concluded that SFFA had standing to bring its claims but that Harvard’s race-conscious admissions program did not violate Title VI.

The lower court’s decision concluded that Harvard’s tipping factors were part of a holistic review process and that Harvard did not have a quota for students of any racial group, including Asian American applicants. The court held that tracking how each group fares in the admissions process allowed Harvard to achieve racial diversity and a rich experience for current and future students. As a result, the Harvard admissions team failed to violate any established precedent and any aspect of Title VI.

The lower court did acknowledge that if admissions were based on academic and extracurricular factors alone, Asian Americans would likely be admitted at a higher rate. By contrast, the district court noted that Asian American applicants were rated lower than their similarly situated white applicants in several rating components—including athletics and personal factors. Because of this alignment of factors, the district court found that Harvard did not intentionally discriminate against Asian Americans in its admissions review and rating process.

Both parties appealed to the U.S. Court of Appeals for the First Circuit. Harvard appealed the lower court’s decision on SFFA’s standing, and SFFA appealed the decision on the legality of Harvard’s admission program.

Discrimination Against Asian American Applicants Not Found, Court Dismisses Claim

The appellate court affirmed the trial court’s decision that SFFA had standing to assert its claim. Specifically, the court found that the organization had put forth sufficient facts to establish that it was a valid membership organization and had associational standing.

Turning to SFFA’s substantive claims, the First Circuit affirmed the district court’s ruling that Harvard’s admission review process did not violate Title VI. Applying strict scrutiny, the appellate court held that the admissions process was narrowly tailored to further Harvard’s compelling interest in the educational benefits of diversity. Through the Khurana Report, along with additional testimony at trial, Harvard had “identified specific, measurable goals it [sought] to achieve by considering race in admissions,” the court held. Further, “Harvard trie[d] to create opportunities for interactions between students from different backgrounds and with different experiences to stimulate both academic and non-academic learning.”

Acknowledging that many other colleges and universities consider an applicant’s race in addition to many other factors in their admissions decisions, the appeals court held that its decision was in line with Supreme Court precedent and the business community’s “interest in having a well-educated, diverse hiring pool.”

The appellate court also rejected SFFA’s arguments that Harvard’s policy was not narrowly tailored. In rejecting the nonprofit’s argument that Harvard had engaged in predetermining a racial quota of students, regardless of their qualities, it held that Harvard’s admitted share of applicants by race varied relatively little in absolute terms for the classes of 2009 to 2018. On this fact, the court concluded that Harvard did not utilize quotas and was not engaged in racial balancing.

The appellate court also found that Harvard’s use of race in admissions was merely contextual and not exclusive. The weight given to an applicant’s race was not significant enough that the factor became “mechanical” or “decisive.” That indicated that Harvard’s admissions practices were in line with previous Supreme Court precedent “as a way of considering race in a non-mechanical way.” Harvard’s Smith Report, moreover, satisfied Harvard’s burden of demonstrating that SFFA’s proposed alternatives were not workable and would undercut Harvard’s educational objectives.

The nonprofit has appealed to the U.S. Supreme Court. As of press time, the petition for write of certiorari is pending.

Remediating Past Wrongs and Educating a Diverse Workforce for the Future

ABA Litigation Section leaders note the potential benefits of diversity in higher education as set out in the Supreme Court’s precedent. “The benefit of considering race as a factor is that it presents an opportunity to remediate the legacy of discrimination in education for racial minorities,” reasons Tiffany M. Williams, Malibu, CA, Secretary of the Litigation Section.

Remediation of racial inequities was one of the potential benefits of diversity noted in the Bakke decision. Narrowly tailored programs that pass strict scrutiny can provide remedial effects by giving “minority students access to education opportunities that their fathers and mothers could not access due to race and financial reasons,” observes Alexander C. Wharton, Memphis, TN, cochair of the Section’s Minority Trial Lawyer Committee. Remediation “recognizes the effect that institutional racism has played in our country’s history. The great weight [our country faces] is its history of racism and the systems put in place to strengthen inequality, not equality,” adds Wharton.

As set out in the appellate court’s review of Harvard’s program, remediation is not the only potential interest in diversity. The appellate court noted that Harvard had articulated an interest in the specific educational benefits of exposing its student body to a diverse set of people, cultures, ideas, and viewpoints. That goal is a worthy one, suggests Wharton. “Our educational systems and institutions serve as the first real opportunity to exposure of different perspectives, ideologies, and backgrounds other than those in our household and immediate community,” he explains.

Section leaders also note the focus placed by the appellate court and Harvard on the potential broader civic benefits of race-conscious admissions policies. Harvard identified the institution’s historical interest in developing leaders ready to serve the needs of the country. “In order to strengthen our country, we have to recognize the importance of tapping into the richness [that] diversity brings,” opines Wharton. Harvard’s Khurana Report, quoting the Supreme Court in Grutter, noted that the institution sought to “cultivate a set of leaders with legitimacy in the eyes of the citizenry” by creating a path to leadership that was “visibly open to talented and qualified individuals of every race and ethnicity.”

Ongoing Attention to Diversity Is Key

As the appellate court recognized in its decision, institutions like Harvard have an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” This obligation, set out in Fisher II, means that universities may not continually rely on policies without refinement. Consistent with that requirement, Harvard’s Smith Committee recommended that the school revisit workable race-neutral alternatives to the tipping policy in 2023.

An institution’s constant attention to these issues can also help remedy underlying problems, offers Chauntis Jenkins Floyd, Alpharetta, GA, the Section’s Diversity & Inclusion Officer. “If an institution is truly committed to providing the highest level of education to its students, eradicating institutional racism and discrimination should be as important as its endowment. It should be a perpetual and ambitious effort that involves students, faculty, and alumni with clearly defined and measurable steps to eradicate racism,” she concludes.