Takeaways for College, University, and K-12 Leaders from Recent Harvard Race Discrimination Decision

On October 1, a federal trial court in Massachusetts upheld Harvard University’s use of race in its admissions process against a challenge that the policy discriminates against Asian-American students on the basis of race. The decision followed a long line of U.S. Supreme Court cases holding that colleges and universities may use race as a “plus factor” among many in admissions decisions. The composition of the Supreme Court has changed since those decisions issued, and an appeal to the Court is expected. Nonetheless, the decision offers important takeaways for college, university, and K-12 leaders who wish to foster diversity in student admissions and school assignments.

Background

The Harvard lawsuit was filed by a nonprofit group, Students for Fair Admissions, on behalf of Asian-American students who were denied admission to Harvard. The group is led in part by Abigail Fisher, the white student whose lawsuit against the University of Texas for racial discrimination the Supreme Court rejected by one vote in 2016. Fisher’s case was an unexpected victory for proponents of racial diversity in schools, as the “swing vote” in the case, Anthony Kennedy, had never before voted to uphold an affirmative action plan. Many believed at the time that the Court would overturn its longstanding precedent that schools could use race as one factor among many, such as grades, test scores, extracurricular involvement, and legacy status, in making admissions decisions.

The Lawsuit

In the Harvard lawsuit, the plaintiffs raise many familiar arguments against the use of race for any reason in admissions and other school placement decisions. For example, they claim that Harvard’s system is really impermissible racial balancing and that the practice unfairly burdens other racial groups. But the case includes a unique twist, in that the alleged victims of Harvard’s practices are themselves racial minorities. Data suggests that Asian-American students are admitted at a lower proportionate rate when colleges consider race as a factor.

Takeaways for School Leaders

Based on the trial court judge’s decision, college, university, and K-12 school leaders should keep the following key points in mind:

• If a school uses race-based admissions or assignment practices, those decisions must pass the highest level of judicial scrutiny–otherwise known as “strict scrutiny.” Harvard failed to convince the trial court that its admissions program was “facially neutral” even though its procedures did not explicitly preference particular racial groups. As the trial court explained, any time admissions officers or others making placement decisions take an applicant’s race into account, strict scrutiny applies.
• Strict scrutiny requires showing an interest that is “substantial and compelling,” and this case, like decades of cases that preceded it, have recognized that the achievement of a diverse student body meets that standard. This is the (relatively) easy part of the test.
• Strict scrutiny also requires showing that the use of race as a factor in an admissions or assignment decision was “narrowly tailored” to achieve the goal of a diverse student body. What we know is that schools cannot use a quota system or “racial balancing,” or assign a specific value to an applicant’s racial identity. But what was key in this decision was that the trial court found there was no adequate, workable, and sufficient fully race-neutral alternative that would have led Harvard to reach its goal. This is a very important piece of the analysis for schools at all levels, as the trial court painstakingly described evidence that alternative admissions practices were considered or used and had no meaningful impact on racial diversity.
• The court found that Harvard’s admissions program did not unduly disadvantage Asian-American applicants as compared to white students. Although Asian-American students did receive lower “plus factor” ratings than white applicants, there was no evidence that the difference was the result of intentional discrimination or “discriminatory animus or conscious prejudice” by Harvard. The importance of this lack of evidence on the court’s analysis is a reminder to schools of just how important avoiding intentional discrimination can be.

Because the Supreme Court, which now has a clear conservative majority, will likely hear the expected appeal of this decision, school leaders will need to continue to monitor this case. For more information about this case or how to use race-conscious measures in a legally supportable way, contact any Franczek attorney.