What next for Harvard’s affirmative action case? It’s complicated
By Deirdre Fernandes, Boston Globe, Nov. 24, 2018
All sides have prepared for the Harvard University admissions case to land in front of the Supreme Court, with the justices ultimately weighing in on the future of affirmative action for the next generation of college students. But it may not be that simple.
Several legal experts say it’s possible that the justices may give the case a pass, given the complexity of the arguments, the racially tense climate of the country, and the fact that they’ve grappled with the issue as recently as 2016.
“This is a complicated case at a particularly fraught moment,” said Rachel Moran, the former dean of the University of California Los Angeles School of Law. “It’s a messy case. It’s a very, very important case. I wouldn’t say the path to the Supreme Court is uncomplicated or unswerving.”
The groundbreaking trial, which recently concluded in Boston federal court, has raised questions about discrimination, bias, and diversity in college admissions with broad implications not just for Harvard, but higher education generally. The case seems poised to test the Supreme Court’s commitment to affirmative action in higher education. But unlike previous such legal challenges that focused on public colleges, this one contests the independence of a private institution to set its own mission and standards for admissions. The case also follows recent affirmative action decisions and comes at a time when the country’s politics and culture are increasingly frayed along racial lines, Moran said.
The court may want to take a breather, she said.
But the recent appointments by President Trump of Neil Gorsuch and Brett Kavanaugh to the Supreme Court may change that calculus, other experts said.
Conservatives have solidified power on the court and may be primed to end or further limit the use of race in college admissions, said Theodore Shaw, the director of the Center for Civil Rights at the University of North Carolina Chapel Hill.
“It has a greater chance . . . because the court has changed,” Shaw said.
A potential Supreme Court battle is still a few years away, and opponents of affirmative action have other cases in the pipeline, ensuring that the issue will remain on the legal forefront.
Students for Fair Admissions, the group that accused Harvard of discriminating against Asian-American applicants, has also sued the University of North Carolina Chapel Hill, alleging that its use of race in admissions penalizes Asian-American and white students. That case is still in the discovery stage.
This fall, the Justice Department launched an investigation into whether Yale University unlawfully discriminates against Asian-American applicants based on race.
And earlier this month, Richard Sander, a professor at the University of California Los Angeles School of Law, and the nonprofit Asian American Community Services Center, filed a state lawsuit demanding undergraduate enrollment and admissions data from the California university system. Sander and George Shen, the president of the Asian American Community Services Center, have raised questions about whether the university system is abiding by the California voter-approved ban on the use of affirmative action in admissions.
For now though, the focus is on Allison Burroughs, the Boston federal district court judge who will review hours of testimony and reams of data to determine whether Harvard’s admissions policy harms Asian-Americans applicants, and if so, what is the appropriate remedy.
The earliest Burroughs could rule is this spring. She will play a crucial role by establishing the central facts of the case, laying the framework for future appeals.
“There’s a lot of evidence. It was a long trial,” said Angela Onwuachi-Willig, the dean of Boston University School of Law. “Given the import of the decision . . . the district court judge is going to want to be very, very careful.”
Students for Fair Admissions claims that the university discriminates against Asian-American applicants and is seeking to end affirmative action in college admissions.
Over the three-week trial, the organization, founded by conservative activist Edward Blum, argued that Asian-Americans, despite their higher academic achievements and their strong extracurricular participation, received lower personal scores on character traits such as courage and leadership from Harvard’s admissions officials. Those personal scores are crucial to gaining admission to Harvard, where more than 42,000 of the country’s brightest high school seniors compete for just 1,600 seats every year. The personal scores are subjective and tinged with implicit racial bias, Students for Fair Admissions alleged.
Harvard denies that it discriminates against Asian-Americans.
Harvard’s top brass, from its former president to its longtime dean of admissions, took the stand to stress that the university’s evaluation system is nuanced, complex, and designed to ensure a diverse campus that benefits all students. Harvard contends that Students for Fair Admissions cherry-picked data and that its analysis of the university’s admissions process is flawed.
The lawsuit is unusual. Previous affirmative action cases have claimed that white applicants were at a disadvantage, and they have involved public colleges. Generally, private institutions have more leeway to set their missions, diversity goals, and standards for applicants.
In addition, Students for Fair Admissions spent much of the trial suggesting that implicit or unconscious bias is at play in the process. Harvard’s admissions officers may be stereotyping Asian-American students, evaluating them as quiet, bookish, and less appealing than white, black, or Hispanic applicants, Students for Fair Admissions alleged.
“When you have a subjective process and we know that bias is possible, bias around race, bias around gender, the fact that Asian-American applicants face a statistically significant penalty on the subjective personal rating year after year is pretty strong evidence that bias has crept into, leaked into the system,” John Hughes, an attorney for Students for Fair Admissions said in his closing statement. “We don’t have to prove racist cabal.”
But showing intent has been key in discrimination cases in the past and unconscious bias remains a fairly new standard, legal experts said.
“All courts have been very narrow in looking at nonconscious bias,” Onwuachi-Willig said. “If the court finds implicit bias is enough . . . it would change antidiscrimination law.”
Still, the fact that Asian-Americans as a group receive lower personal scores remains an open issue in the case and could help Students for Fair Admissions, said Vikram David Amar, dean of University of Illinois College of Law.
“If we were back in the 1950s, if African-American and Jews were getting low personal scores as a group . . . I think we would have said, ‘Wait a second, what’s going on?’ ” Amar said.
If Burroughs finds that Harvard’s admissions process is hurting Asian-American applicants, the solution doesn’t necessarily have to be race-neutral admissions, as Students for Fair Admissions has urged, Amar said.
Burroughs could suggest remedies, such as more training for admissions officers or tweaks to the process that would address any potential bias, he said.
Whether that would satisfy Harvard or Students for Fair Admissions is uncertain. Both sides have indicated that they are likely to appeal Burroughs’s ruling if they lose.
How those appeals play out could also determine whether the Supreme Court steps in, Amar said.
Supreme Court rulings on affirmative action in college admissions have traditionally been few and far between.
In 1978, the court declared that affirmative action was constitutional but barred quotas in the Bakke decision involving the University of California system.
In 2003, the court upheld affirmative action in a 5-4 vote in a case over the University of Michigan’s admissions practices. The court didn’t take up the issue again until it considered the University of Texas Austin’s admissions policy in 2013 and more fully in 2016, deciding 4-3 that colleges could use race as one factor in considering applicants and creating a diverse student body.
“It doesn’t seem that the Supreme Court has a history of taking these cases frequently,” Amar said. “But maybe Kavanaugh and Gorsuch have a different attitude.”