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Diversity or discrimination? What’s at stake in the Harvard admissions lawsuit

Asian-Americans – and the US Department of Justice – are weighing in as a court determines whether the Ivy League school's approach to admissions has been discriminatory. 

Elise Amendola/AP/File
A tour group walks through the campus of Harvard University, in Cambridge, Mass., in 2012. The US Department of Justice has sided with Students for Fair Admissions Inc., which is suing Harvard over its consideration of race in admissions.

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Should college admissions be race-neutral? Increasingly, it’s a question being pushed to the courts to decide, with the latest test coming from a lawsuit against Harvard University. Last week, the US Department of Justice submitted a brief in support of the plaintiff, a group that opposes consideration of race and argues that the school discriminates against Asian-Americans. Harvard disagrees, defending its “whole-person evaluation” and saying that, in pursuit of diversity, it legally treats race as one of many factors in admissions. Asian-Americans have weighed in on both sides. The case of Students for Fair Admissions Inc. (SFFA) v. Harvard is scheduled to go to trial on Oct. 15. Ultimately, it could end up at the Supreme Court, which is likely to be more conservative than in 2016, when it upheld narrowly tailored race-conscious admissions in Fisher v. University of Texas at Austin, 4 to 3. If so, supporters of SFFA hope a decision in its favor would strongly curtail, or completely prevent, the consideration of race in college admissions. 

With potentially big implications for campuses nationwide, the latest battle over affirmative action – Students for Fair Admissions Inc. (SFFA) v. Harvard – has been playing out in United States District Court in Massachusetts. On Aug. 30, the US Department of Justice threw its weight behind the plaintiff, which claims that the Ivy League university treats Asian-American undergraduate applicants unfairly. The case highlights the tension between those who see civil rights as best promoted by acknowledging race and those who see any attention to race as discriminatory. A trial is scheduled to start Oct. 15.

Q: What is the lawsuit about?

It boils down to this question: Is race too strong of a factor in admissions to one of the nation’s most prestigious universities?

SFFA claims Harvard discriminates against Asian-Americans. It accuses the university in Cambridge, Mass., of “racial balancing” – keeping roughly the same distribution of racial groups year after year despite changes in application rates and qualifications.

Instead of considering race as only one small part among many factors in a holistic review – as the US Supreme Court has allowed – Harvard treats “race or ethnicity as a dominant factor,” SFFA says, holding Asian-Americans to a higher standard.

The lawsuit is widely seen as the latest tactic in ongoing attempts to unravel race-conscious affirmative action. The president of SFFA, a nonprofit membership organization, is Edward Blum, the man behind two prominent Supreme Court cases – one in 2016 that failed to overturn affirmative action at the University of Texas and one in 2013 that successfully overturned part of the Voting Rights Act of 1965.

Supporters of affirmative action vigorously defend it as essential to diversity on campus and to the educational mission of institutions that use it.

Q: How has Harvard responded?

Harvard denies it conducts racial balancing or discriminates against Asian-American applicants. It also challenges SFFA’s statistical analysis of admissions data. 

Harvard defends its “whole-person evaluation,” saying race is one of many factors considered in pursuit of diversity. Beyond test scores and grades, for example, it assesses extracurricular commitments, athletic abilities, personal qualities, and socioeconomic status.

Over the past decade, the percentage of Asian-American students in the admitted class has grown by 29 percent, Harvard notes, and is currently about 23 percent.

Q: What are the potential ramifications of the suit?

It could end up at the Supreme Court, which is likely to be more conservative than in 2016, when it upheld narrowly tailored race-conscious admissions in Fisher v. University of Texas at Austin, 4 to 3. If so, supporters of SFFA hope a decision in its favor would strongly curtail, or completely prevent, the consideration of race in college admissions. 

SFFA is also pursuing a federal case against affirmative action at the University of North Carolina, Chapel Hill, and a state case against the University of Texas, Austin. 

In the US, there has been “a chilling effect on universities using race-conscious policies for a while now,” because many schools fear an expensive lawsuit, says Colorado State University education professor OiYan Poon, who joined more than 500 social scientists in filing a brief on behalf of Harvard. 

Q: How have other groups weighed in on the lawsuit?

Both sides have requested summary judgment – in which the judge would decide the case on the information submitted so far, rather than proceeding with a trial. 

In response, hundreds of groups and individuals – including current and former Harvard students, universities, higher education organizations, and civil rights coalitions – have contributed to friend-of-the-court briefs defending Harvard and the consideration of race as part of a holistic process. 

Asian-American groups in this camp say they refuse to be pitted against the interests of other minority groups, and they accuse SFFA of attempting to use Asian-Americans as a wedge to further an agenda that mainly would benefit whites.

“Low-income Asian-Americans and applicants from underrepresented Asian-American subgroups benefit from the consideration of race,” and from diversity on campus, Nicole Gon Ochi, supervising attorney at Asian Americans Advancing Justice–Los Angeles, told reporters on a call July 30. 

On SFFA’s side, five economists and scholars jointly defended the SFFA’s statistical model. They say lower “personal” ratings of Asian-Americans – one of several categories in Harvard admissions – indicate bias.

Among other briefs on behalf of SFFA was one jointly filed by the Asian American Coalition for Education – representing about 150 groups – and the Asian American Legal Foundation. 

They say Asian-Americans’ experience today parallels the 1920s, when anti-Semitism contributed to Harvard admissions changes that reduced the percentage of Jewish students.

Q: How has the Trump administration gotten involved?

The US Department of Justice filed a statement of interest  in the case Aug. 30, siding with SFFA. It argues that there should be a trial because Harvard has failed to show that it does not discriminate against Asian-Americans. It also accuses Harvard of not seriously considering race-neutral ways to achieve a diverse student body.

The DOJ is also investigating a federal civil rights complaint, filed by 64 Asian-American associations, that challenges Harvard’s admissions policy. 

During President Trump’s tenure, the US Department of Education and the DOJ have rescinded Obama-era guidance that interpreted how colleges and schools could implement race-conscious policies legally based on the Supreme Court’s rulings. Many conservatives say the guidance overstepped, while supporters of affirmative action say removing it will make it more difficult for schools to use policies upheld by the Court.

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