A federal appeals court in Boston will hear arguments on Wednesday in the case claiming Harvard University discriminates against Asian American applicants in undergraduate admissions. Being challenged is more than four decades of Supreme Court precedent that allows colleges to consider race as one factor in accepting students.
In October, U.S. District Court Judge Allison Burroughs ruled Harvard does not discriminate. Students for Fair Admissions, or SFFA, which filed the appeal, has argued Harvard systematically rates Asian Americans lower on certain personality traits, like courage and leadership.
Harvard’s admissions process was cited as a model in the landmark Bakke decision of the Supreme Court in 1978. Since then, that process has been widely replicated at selective private schools across the country, making the stakes in this latest case much broader than Harvard.
In her decision issued in Boston, Burroughs cited 42 years of precedents that allow admissions officials to consider race as one of many factors in deciding which students to admit.
“For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions,” Burroughs wrote, noting that while Harvard’s admission program is not perfect, it “passes constitutional muster in that it satisfies the dictates of strict scrutiny” — the highest standard of legal review.
Three judges of the First Circuit Court of Appeals will hear the appeal of her decision upholding Harvard’s admissions practices as constitutional.
Judge Juan Torruella was nominated by Ronald Reagan, Judge Sandra Lynch by Bill Clinton and Jeffrey Howard by George W. Bush. Torruella, born in Puerto Rico, is Hispanic; Lynch and Howard are white.
Ted Shaw, a lawyer who directs the Center for Civil Rights at the University of North Carolina, said he doesn’t assume anything about the judges' ideology based on who nominated them. “These judges are seasoned judges and probably have some respect for precedent, also,” he said.
Surprisingly, none of the three judges are Harvard grads — even though half the 10 judges on the appeals court went there. A court clerk says the panel was selected at random.
Northeastern University Law Professor and GBH News contributor Daniel Medwed suggested at least some of the court's five judges with Harvard ties had bowed out.
“Is there a possibility that some judges with Harvard affiliations recused themselves on the front end or that the clerk just checked them off the list? We can’t rule out that possibility,” Medwed said.
Regardless, Medwed said he sees the panel's lack of Harvard-educated judges as a good outcome for Harvard and higher education.
“SFFA doesn’t have any ammunition — political or legal — to claim that there’s a conflict of interest in this appeal,” he said.
The hearing Wednesday will not be the first time two of the judges have considered a race-conscious admissions case. In 2005, the federal appeals court narrowly upheld a voluntary desegregation plan in Lynn, MA. In a 3-2 ruling, the court reversed a lower court decision that had struck down the Lynn’s student-assignment policy as discriminatory. That policy allowed school officials to deny families’ requests to transfer to other schools outside of their neighborhoods, depending on the impact on the racial-ethnic balance of the schools.
Torruella supported the ruling that concluded Lynn Public Schools has a compelling interest in securing the educational benefits of racial diversity. Howard dissented, arguing the Lynn plan “unnecessarily inflicts racially based wounds on a large and diverse group of its students and, consequently, fails to satisfy the narrow-tailoring requirements set out in the Supreme Court’s equal protection jurisprudence.” Lynch was not a member of that panel.
In the Harvard case, an opponent of race-conscious admissions invoked part of Burroughs' decision to argue the appeals court should overturn it.
Her decision quoted author Toni Morrison, saying “race is the least reliable information you can have about someone.” Morrison’s words, Burroughs concluded, had to “become accepted and understood before we close the curtain on race-conscious admissions.”
“What Harvard is doing is exactly what Toni Morrison says we shouldn’t do. It’s essentially defining an application in terms of race,” said UCLA Law Professor Rick Sander. He has filed a lawsuit against the University of California system seeking troves of admissions data to determine whether admissions officers have secretly considered race in admissions, even though California voters banned the practice 24 years ago. Repeal of that law is on California's ballot in November.
During the three-week trial in Boston, Sander said Burroughs never fully confronted a statistical analysis revealing what he sees as Harvard’s intentional discrimination.
“If you took roughly the median student who gets admitted by Harvard, if that student is African American they have about a 90 to 95 percent chance of admission. If they're Asian American, they have about a 25 percent chance of admission,” Sander said, citing the statistical analysis done for SFFA in their argument. “This is not just one of many factors, right? This is a very heavy weight being put on race.”
Harvard denies that allegation, saying its admissions philosophy complies with the law. The college also points out that the percentage of admitted Asian American students has spiked to its highest level ever — 25 percent. That’s up seven percentage points from a decade ago. Asian Americans make up 6 percent of the country's population.
The odds Sander references depend to some extent on how many members of a particular racial-ethnic group apply. A large number in the pool would tend to depress that group's acceptance rate.
“There’s always something that people can hang on to with respect to an appeal,” said Shaw, who is also a former director-counsel of the NAACP Legal Defense Fund.
Shaw pointed out that during the trial, none of the anonymous Asian American plaintiffs testified. He said banking on statistics and test scores — rather than personal narratives — makes for a weak challenge to race-conscious admissions.
“There’s an underlying assumption that when people score at a certain level, that that is almost the end of the question of who is qualified to get in and who is not qualified to get in,” he said.
A national GBH News survey conducted in 2018 before the trial found seven in 10 Americans oppose considering race in college admissions, although a higher percentage said they value racial diversity on campus.
Following anti-police brutality protests and a resurgence of the Black Lives Matter movement, Shaw says the country has entered a new era. While he said he still finds a lot of doubt — and even hostility — among white people about considering race in admissions, he’s also witnessing more consciousness.
“We see more white folks out in the street acknowledging the fact that Black lives do matter,” he said.
Still, Shaw cautioned, federal courts don’t serve as barometers of social movements.
The high-profile Harvard appeal is being watched closely as the consideration of race in selective college admissions is under siege. In addition to Harvard, SFFA, led by conservative political strategist Edward Blum, who is known for his opposition to considering race or ethnicity in any decision-making, is also suing the University of North Carolina. Last month, the Trump administration accused Yale of illegally discriminating against Asian American and white applicants.
What’s distinctive about these legal challenges, UCLA’s Rick Sander points out, is that they’re heavily based on statistics.
“You really have for the first time, well-developed empirical evidence,” he said.
At trial, Harvard called a witness who presented a different statistical analysis that disputed the conclusion of the analysis done for SFFA.
A decision on the appeal is expected as early as this winter. Whichever side prevails, that decision is widely expected to land before the Supreme Court.