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Appeals Court Backs Harvard on Affirmative Action

November 19, 2020

Appeals Court Backs Harvard on Affirmative Action, Judges rule there is no evidence of discrimination against Asian Americans. The case is headed to the Supreme Court. By Scott Jaschik, November 16, 2020


The U.S. Court of Appeals for the First Circuit on Thursday backed Harvard University in a lawsuit over its admissions system.

"The issue before us is whether Harvard's limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent. There was no error," said the appeals court. Specifically, the court ruled that Asian Americans were not illegally discriminated against.

The ruling upheld a lower court's decision last year, but it is certain to be appealed.

Edward Blum, president of Students for Fair Admissions, which sued Harvard on behalf of Asian American applicants, said, “While we are disappointed with the opinion of the First Circuit Court of Appeals, our hope is not lost. 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.”

Harvard president Lawrence S. Bacow said, “Just over a year ago, U.S. District Judge Allison Burroughs found in Harvard’s favor. Today, her decision -- and the values that underlie our undergraduate admissions process -- are reaffirmed. The consideration of race, alongside many other factors, helps us achieve our goal of creating a student body that enriches the education of every student. Diversity also represents a pathway for excellence for both Harvard and the nation. We will continue to defend these principles and our admissions process all the way to the Supreme Court, if necessary.”

The decision was 2 to 0. A third judge heard the case but died in October. Under court rules, if the two remaining judges agree on the decision, they can issue one.

As Blum's and Bacow's statements indicated, this case is widely expected to go to the Supreme Court, and a ruling there could affect all of higher education. Several of the new justices have not heard a case involving affirmative action in higher education, but they are expected to be a tough sell for Harvard. There are no longer five justices with a history of supporting affirmative action.

The appeals court ruling largely upheld the district court ruling last year by Judge Burroughs.

It found that Harvard's "limited use of race" in admissions decisions "survives strict scrutiny," the legal standard required. "Harvard admits that it considers race in its admissions process and at times provides tips to applicants based on their race. Strict scrutiny applies regardless of racial animus. Strict scrutiny requires that the university's use of race must further a compelling interest," the decision said.

"Harvard has identified specific, measurable goals it seeks to achieve by considering race in admissions," the decision said. The goals are: "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."

The decision added, "Testimony at trial also supported Harvard's interest in diversity. The district court made a factual finding that 'Harvard values and pursues many kinds of diversity within its classes, including different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities.' It found that 'Harvard tries to create opportunities for interactions between students from different backgrounds and with different experiences to stimulate both academic and non-academic learning.' It based these findings on the testimony of "all of the Harvard admissions officers, faculty, students, and alumni that testified at trial."

"Harvard's interest in student body diversity and its consideration of race to attain it is also not unique. Many other colleges and universities consider an applicant's race, in addition to many other factors, in admissions. And the business community has communicated its interest in having a well-educated, diverse hiring pool both in this case and in the prior governing Supreme Court cases."

The appeals court then rejected the argument of Students for Fair Admissions that the university was engaged in determining how many Asian Americans to admit -- regardless of the qualities of a given pool of applicants.

"The share of admitted Asian American applicants for the classes of 1980 to 2019 has increased from a low of 3.4 percent in 1980 to a high of 20.6 percent in 2019. The share of Asian American applicants has ranged from a low of 4.1 percent in 1980 and a high of 22.5 percent in 2014 over the same period. The level of variation in the share of admitted Asian American applicants is inconsistent with a quota, as is the fact that the share of admitted Asian Americans co-varies almost perfectly with the share of Asian American applicants," the decision said.

The decision continued, "The amount by which the share of admitted Asian American applicants fluctuates is greater than the amount by which the share of Asian American applicants fluctuates. This is also true for Hispanic and African American applicants. It is the opposite of what one would expect if Harvard imposed a quota. The fact that Harvard's admitted share of applicants by race varies relatively little in absolute terms for the classes of 2009 to 2018 is unsurprising and reflects the fact that the racial makeup of Harvard's applicant pool also varies very little over this period. The district court properly concluded that Harvard does not utilize quotas and does not engage in racial balancing."

The judges also ruled that Harvard did not do anything illegal by paying attention to yield rates -- the rates at which admitted applicants enroll. "Managing yield rates is also permissible," the decision said. "Harvard is a residential college with a limited number of beds. It needs to carefully monitor the number of applicants it admits to avoid becoming overcrowded. Applicants with different demographics accept offers of admission at different rates. For example, applicants from 'Sparse Country' accept offers of admission at lower rates than other applicants. Engineering admittees yield at lower rates. And applicants of different races also enroll at differing rates."

Finally, the appeals court said that Harvard's use of holistic admissions -- in which candidates are evaluated based on everything in their records -- was important. "SFFA's contention that Harvard elevates racial diversity above other types of diversity is not supported by the evidence. Harvard has demonstrated that it values all types of diversity, not just racial diversity," the decision said. "Harvard's use of race in admissions is contextual and it does not consider race exclusively. Next, Harvard's process does not weigh race so heavily that it becomes mechanical and decisive in practice. Harvard's undergraduate admissions program considers race as part of a holistic review process. This use was previously praised by the Supreme Court as a way of considering race in a non-mechanical way."

Many Legal Disputes

If the Supreme Court takes the case, it will do so with several legal disputes about affirmative action ongoing. SFFA also sued the University of North Carolina at Chapel Hill over its use of race in decisions, and that case is being heard this week in district court. And the Justice Department sued Yale University, charging that its affirmative action programs discriminate against Asian and white applicants. And last week, voters in California rejected a measure that would have restored affirmative action to the state's public universities.

Colleges and their associations generally backed Harvard in its case and are expected to do so at the Supreme Court.

Ted Mitchell, president of the American Council on Education, issued this statement: ​“Today’s ruling is a clear win for Harvard University and is just the latest federal court decision that unambiguously respects more than four decades of U.S. Supreme Court precedent that race and ethnicity can be considered within a narrowly tailored framework as one factor in a holistic admissions review to help colleges and universities achieve the goal of a talented, diverse incoming class. We applaud in the strongest terms this ruling by the First Circuit Court of Appeals and are confident that if and when this case goes to the Supreme Court, the justices will continue to uphold the vital principle that student body diversity is a compelling governmental interest. In the meantime, colleges and universities continue to have the autonomy to define the intangible characteristics like diversity that are central to each institution's identity and educational mission.”

By Scott Jaschik, November 16, 2020