Students For Fair Admissions v Harvard: Affirmative Action in Crisis?

I. Introduction

“Our Constitution is colour-blind, and neither knows nor tolerates classes among citizens… The law regards man as man, and takes no account of his surroundings or of his colour”.[1]

These words, spoken by Justice John Marshall Harlan in 1896, are still disputed today in the United States, with the compelling issue of alleged discrimination in college admissions applications being contested in the courts. In November 2014, Students For Fair Admissions (SFFA) filed a complaint against Harvard University maintaining that the college employs 'racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions'.[2] The basis of the claim centres on Harvard’s alleged discrimination towards Asian-American applicants, in that they are held to a higher standard in the application process as compared to all other ethnic groups.

The case is of particular importance to many concerned with the process of American university applications and those affiliated with civil rights groups seeking change, or for those hoping to maintain the current practice. The decision of the case will have significant implications for future programs which aim to increase the number of minority groups in colleges across the US. Even more consequential, the decision of SFFA v Harvard, which will likely be contested all the way to the Supreme Court, could have major implications for the federal government policy of affirmative action as the plaintiffs argue that the complete removal of race-based considerations in admissions is the only real way to ensure Asian-Americans have an equal chance of being accepted into elite institutions such as Harvard or other colleges nationwide.[3]

In this article, the author will examine the issues that led to Harvard’s admissions policy being contested by analysing Supreme Court precedent involving the statutory legality and constitutional status of affirmative action in the US. Furthermore, the author will seek to outline the reasons for his belief that affirmative action in college admissions ought to be retained despite its difficulties.

II. Harvard’s Diversity Program

(i) The holistic process and its origins
A century ago, many elite American universities became more aware of their role in socially engineering a society with prevalent class-based divisions.[4] Among these institutions, there was a shared ambition to amass diverse university campuses with many factors considered in admitting aspiring applicants that went beyond mere geography. Such factors alongside proven academic ability were those of personal qualities and racial background. Harvard led the way in developing this holistic admissions policy. Nonetheless, the plaintiffs assert that the initial reasons for the college doing so are more suspect. It seems that Harvard’s eagerness to implement a more diverse applications process heavily arose in the nineteen-twenties from a fear of an excessive body of Jewish students who were deemed academically capable but lacked the desired personality and character traits.[5] Thus the supposed origins of Harvard’s diversity program has become a point of argument for the plaintiffs as they assert that the 'personal' ratings in applications which considers factors such as likeability, kindness, integrity and effervescence among other things, which they believe had discriminated against Jewish applicants in the past, are now presently used to the detriment of Asian-American applicants.[6]

(ii) The issue of personal ratings
SFFA obtained data on more than 160,000 recent applications revealing that statistically Asians scored lower in terms of personality ratings.[7] Despite the fact that their academic scoring was on par and often even higher than white applicants, the personal ratings lowered the number of Asian admissions. Harvard maintains the data is flawed.[8] The legality of these personal ratings was questioned by the plaintiff’s attorneys, who indicated that there is a lack of written instructions to guide admissions officers on how to fairly use race, which would help reduce implicit racial bias.[9] If it is found that there is, indeed, a pattern of personal bias against Asian applicants, the legal justification of these personal ratings would be highly questionable and it would therefore be quite understandable if SFFA are to use them as their main argument in the push for 'the outright prohibition of racial preferences in university admissions'.[10]

III. The Law on Affirmative Action

(i) The original intentions
Accordingly, it is no surprise that the subject of affirmative action is a divisive one for Asian-Americans. Affirmative action, otherwise known as 'positive discrimination', was introduced in the US. by President John F. Kennedy in 1961 with the intention that it would help 'level the playing field' in certain areas of employment, giving those of a minority ethnicity or of lower means assistance in securing work.[11] Affirmative Action, when introduced, aimed to fulfil the goal of compensatory and distributive justice.[12] The policies sought to partly rectify and compensate for the injustices of the past, when minorities suffered from inhumane discrimination. There was a clear intention to enhance the status of minorities in American society. The Harvard case will soon be encompassed within a long line of cases challenging fundamental aspects of the policy of affirmative action.

(ii) Regents of the University of California v Bakke
The law on affirmative action as it stands is rooted in Justice Powell’s lone opinion in Regents of the University of California v Bakke.[13] His judgement was effective in shifting the rationale for ethnic preferences from redressing societal discrimination and structural racism to the objective of accomplishing diversity. In Bakke,[14] a white applicant to the University of California Davis’ medical school challenged his rejection, alleging that the college operated a system of racial quotas whereby a quantity of students from minority backgrounds were admitted over white applicants despite having lower test scores in an effort to achieve racial balancing. The programme of racial balancing was declared by the Supreme Court to be 'patently unconstitutional'.[15] Racial quotas were deemed legally impermissible.[16] However, numerical goals were seen as constitutional. Goals are flexible, unlike quotas, and their variants can be seen between each year.[17] Effectively, the idea of racial harmonisation values 'race for its own sake'. Diversity, on the other hand, is imperative in that it directly benefits students’ educational experience.

(iii) Bakke’s legacy
Ultimately, Justice Powell’s decision in Bakke emphasises the importance of diversity in a new, more progressive society. In his judgement, Justice Powell gave an overwhelming endorsement of the holistic admissions approach enshrined within the Harvard Plan, noting that a 'boy from Idaho' has as much a critical role in diversity 'as a black student [who] can usually bring something that a white person cannot offer'.[18] Essentially, Powell’s decision ensured that, until as of late, Harvard’s diversity plan was a 'facially non-discriminatory admissions policy'.[19]

IV. Recent Case Law

(i) Grutter v Bollinger
More recently, affirmative action has become further narrowed. In the 2003 case of Grutter v Bollinger,[20] while a 'race-conscious admissions program' was deemed constitutionally acceptable, it was ruled that race is only one consideration in admissions and that 'all factors that may contribute to student body diversity'[21] such as volunteer work and extracurricular activities are to be considered. The decision acknowledges that while such an admissions policy may tend to favour underrepresented minority groups, the policy does not amount to an unconstitutional quota system.

(ii) How SFFA’s case differs from Grutter
Nevertheless, in the Harvard case the issue remains that Asian-Americans are disadvantaged from being an overrepresented minority. The US Government census shows that Asians make up 5.7%[22] of the US population yet are 22.2%[23] of Harvard’s student population. Other institutions which reject racial-based affirmative action policies, such as the California Institute of Technology, have witnessed a surge in their numbers of Asian-American enrolments which is proportionate to the increase in Asian-American students nationwide.[24] The plaintiff submitted that this is proof of informal quotas and racial balancing being operated in Harvard analogous to the quota system imposed on Jewish students almost a century ago. Justice Sandra Day O’Connor’s ruling in Grutter primarily dealt with the application of white students, the majority group in the US. With internal reviews conducted that show if Harvard were to consider only the grades and test scores of applicants, the Asian-American student body would make up 43% of the University student population,[25] it is easy to see why a general observer would believe there to be a race-based quota system being operated in Harvard.

(iii) Fisher v University of Texas and Fisher II
A decade after Grutter came the case of Fisher v University of Texas[26] in which the plaintiff, a young white woman, complained of 'reverse discrimination' which she believed was responsible for her rejection from the University. When the case came before the Supreme Court in 2013, the bench found in a 7-1 decision that the Equal Protection Clause of the Fourteenth Amendment permitted the consideration of race in undergraduate admissions decisions, so long as race was held under a standard of strict judicial scrutiny.[27] This was later affirmed in 2016 when the case again came before the Court. In a 4-3 ruling, Justice Kennedy, who wrote the majority opinion, outlined that affirmative action in college admissions was lawful as long as race was considered as a 'factor of a factor of a factor',[28] thus narrowing the policy of affirmative action even further.
The purpose of affirmative action in the twenty-first century is very different from the one intended in 1961. It no longer primarily exists to accomplish compensatory and distributive justice but to foster and ensure diversity.

V. The Academics’ View
As for educational experts, the issue is a polarizing one. Many have advocated for Harvard’s current process, outlining that the decisions of the US Supreme Court in Grutter v Bollinger suggests that the 'holistic' admissions policy tends to be fairer and more legally defensible than an outright mathematical formulaic approach.[29] Nonetheless, many also disagree. Richard D. Kahlenberg, editor of The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas, maintains that America should implement laws to encourage students of all races who are economically disadvantaged.[30]

However, Kahlenberg’s proposition ignores one of the fundamental components of affirmative action, in that it brings about a form of utilitarian justice. The public at large greatly benefits from reduced racial inequality and particularly the educational experience of Americans has been greatly enhanced because of their association with a more diversified learning and professional environment.

VI. Affirmative Action in Danger
The support for race-conscious admissions policies gained momentum in recent months, as the reality has set in for many that with a new conservative-leaning majority on the US Supreme Court, the entirety of affirmative action is at risk. In July 2018, the US Justice Department effectively abrogated guidelines introduced by the Obama administration that encouraged colleges to promote diversity. In its place, a Bush-era document that advises universities to use 'race-neutral' admissions policies was re-issued.[31] The Trump administration has already declared that it will side against Harvard.[32] An analysis conducted by the New York Times in 2017 found that black and Hispanic students are less represented at America’s elite universities now than they were in the mid-eighties.[33] If affirmative action in college applications were to be rescinded, the number of black and Hispanic students would further fall significantly.

VII. Harvard’s Position

(i) Is Harvard culpable?
When William Fitzsimmons, Harvard’s Dean of Admissions and Financial Aid, was questioned in court as to whether Asian-Americans were disadvantaged in the admissions process, he declined the suggestion of Harvard having a hand in disadvantaging Asian applicants and rejected the perception of bias.[34] Instead he contended that if there was in fact bias, it originated externally, suggesting that there was an inadequacy of support from high-school teachers and guidance-counsellors in the recommendations of Asian students.[35] There is merit in this claim. In the US there remains widespread racial and socio-economic inequality in educational opportunities and this, in effect, is furthering the gap between low-income minority students (with many Asians represented within this category) and the more affluent white middle classes who have access to better resources and thus quality guidance-counselling, among other things.

The US Supreme Court may even have their share of the blame for this. In San Antonio Independent School District v Rodriguez, the Court refused to address the aforementioned disparities when they held that neither a right to education nor a right to address funding inequalities between state districts was recognised in the US Constitution.[36] Indeed, Harvard may not, in fact, be culpable in the current admissions debate.

(ii) How Harvard can win
For Harvard to succeed in this case, they must meet the standards set down in Bakke. Essentially, Harvard must demonstrate to the court that a process of 'strict scrutiny' was satisfied, in that the management of Asian applications was carried out in a way that considered the imperative of achieving a diverse student body and that any outcome that may resemble discrimination towards Asians was unintentional.

Concluding Remarks
Importantly, the result of this case will have no impact on those who gain admission through the legacy programme initiated by Harvard, whereby family of former Harvard alumni have major advantages in being accepted primarily because of their Harvard connections. Neither will this case impact those who gain admission through familial donations to the University and its faculty. Effectively, if the end result is a win for the plaintiffs, those who will be impacted most are of those of Hispanic and black ethnicity, the minority groups who largely suffer most from economic insecurity. Such a ruling would further expand the growing class divisions in the US. This would be the legacy of SFFA’s case.
In order to further the idea of racial inclusion, affirmative action needs to be protected. Racial inclusion brought about by race-conscious policies that have emphasised diversity benefits the US as a nation economically, socially and politically. It will be interesting to see how the case transpires over the coming months, in what will ultimately be a landmark decision.

[1] Mitchell H. Rubinstein, ‘The Affirmative Action Controversy’ (1985), Volume 3, Issue 1, Hofstra Labor and Employment Law Journal, 1.

[2] Brittany N. Ellis, ‘The Harvard Admissions Lawsuit, Explained’ (November 2016), The Harvard Crimson, https://www.thecrimson.com/article/2016/11/7/harvard-admissions-lawsuit-explainer/ accessed January 2019.

[3] P.R. Lockhart, ‘The Lawsuit against Harvard that could change affirmative action in college admissions’ (October 2018), Vox, https://www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination accessed January 2019.

[4] Jeannie Suk Gersen, ‘At trial, Harvard’s Asian problem and a preference for white students from “Sparse County” ’ (October 2018), The New Yorker, https://www.newyorker.com/news/our-columnists/at-trial-harvards-asian-problem-and-a-preference-for-white-students-from-sparse-country accessed January 2019.

[5] ibid.

[6] ibid.

[7] Nick Anderson, ‘What gives you an edge in Harvard admissions? Check the trial evidence’, (October 2018), The Washington Post, https://www.washingtonpost.com/local/education/what-gives-you-an-edge-in-harvard-admissions-check-the-trial-evidence/2018/10/17/c8004068-d17d-11e8-8c22-fa2ef74bd6d6_story.html?utm_term=.0cf75624fc96 accessed January 2019.

[8] Kadhim Shubber, ‘Asian-Americans ‘disadvantaged’ in Harvard admissions’ (August 2018), The Financial Times https://www.ft.com/content/ebdfe852-ac67-11e8-94bd-cba20d67390c accessed January 2019.

[9] Suk Gersen (n 4).

[10] ‘The Harvard Plan That Failed Asian Americans’, The Harvard Law Review (December 2017), https://harvardlawreview.org/2017/12/the-harvard-plan-that-failed-asian-americans/ accessed January 2019.

[11] Harriet Alexander, ‘What is affirmative action in American universities?’ (December 2015), The Telegraph https://www.telegraph.co.uk/news/worldnews/northamerica/usa/12040823/What-is-affirmative-action-in-American-universities.html accessed January 2019.

[12] Rubinstein (n 1).

[13] Harvard Law Review (n 10).

[14] Regents of the Uni v. of Cal. v. Bakke, Legal Information Institute, Cornell Law School.

[15] ibid.

[16] ibid, 279.

[17] Harvard Law Review (n 10).

[18] ibid.

[19] ibid.

[20] Grutter v. Bollinger 539 U.S. 306 (2003), Justia, US Supreme Court.

[21] ibid, 309.

[22] Quick Facts: United States, US Census Bureau, https://www.census.gov/quickfacts/fact/table/US/PST045218 accessed January 2019.

[23] Shera S. Avi-Yonah and Molly C. McCaferty, ‘Asian-American Harvard applicants saw lowest admit rate of any racial group from 1995 to 2013’ (October 2018), The Harvard Crimson, https://www.thecrimson.com/article/2018/10/19/acceptance-rates-by-race/ accessed 2019.

[24] Harvard Law Review (n 10).

[25] Paul Waldman, ‘The case that will destroy affirmative action in higher education’ (October 2018), The Washington Post, https://www.washingtonpost.com/blogs/plum-line/wp/2018/10/18/the-case-that-will-destroy-affirmative-action-in-higher-education/?utm_term=.8713e76bd3a7 accessed January 2019.

[26] Fisher v University of Texas at Austin (2016), supremecourt.gov/opinions.

[27] ibid.

[28] ibid, 5.

[29] Clarence D. Kreiter, ‘A Proposal for Evaluating the Validity of Holistic-Based Admission Processes’, (January 2013), Taylor & Francis Online, https://www.tandfonline.com/doi/full/10.1080/10401334.2012.741548 accessed January 2019.

[30] Richard D. Kahlenberg, ‘A Better Affirmative Action: State Universities that Created Alternative to Racial Preferences’, A Century Foundation Report, https://tcf.org/assets/downloads/tcf_abaa.pdf accessed January 2019.

[31] Shubber (n 8).

[32] Harriet Alexander, ‘Trump administration sides against Harvard in Asian-American affirmative action case’ (August 2018), The Telegraph, https://www.telegraph.co.uk/news/2018/08/30/trump-administration-sides-against-harvard-asian-american-affirmative/ accessed January 2019.

[33] Jeremey Askenas, Haeyoun Park and Adam Pearce, ‘Even With Affirmative Action, Blacks and Hispanics Are More Underrepresented at Top Colleges Than 35 Years Ago’ (August 2017), The New York Times, https://www.nytimes.com/interactive/2017/08/24/us/affirmative-action.html accessed January 2019.

[34] Suk Gersen (n 4).

[35] ibid.

[36] Kimberly Jenkins Robinson, ‘Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education’ (November 2016), Harvard Law Review, https://harvardlawreview.org/2016/11/fishers-cautionary-tale-and-the-urgent-need-for-equal-access-to-an-excellent-education/ accessed January 2019.