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What’s Next for Harvard’s ‘Fair Admissions’ Case?

Dec. 16, 2020, 9:00 AM

The U.S. Court of Appeals for the First Circuit Nov. 12 upheld Harvard University’s use of race as a factor in admissions.

The decision came nearly six years to the day after Students for Fair Admissions (SFFA) filed its 2014 complaint in the U.S. District Court for the District of Massachusetts alleging that Harvard’s “admittedly race-conscious undergraduate admissions process” violated Title VI of the 1964 Civil Rights Act “by discriminating against Asian American applicants in favor of white applicants.”

The ruling affirmed U.S. District Court Judge Allison D. Burroughs’ Sept. 30, 2019, opinion that concluded:
Harvard’s admission program passes constitutional muster in that it satisfies the dictates of strict scrutiny. The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences.

Education is often considered the great equalizer, providing children and individuals with countless opportunities from which they would not otherwise have benefited. Historically, however, not all those protected by the Constitution have had access to this great equalizer.

With this in mind, the nation and its courts continue to deal with the challenge of recalibrating historical imbalances, particularly in higher education, by permitting consideration of race as a factor in admissions.

The Fierce Urgency of Diversity in Education

The case for diversity in education is strong. As stated by the district court in the Harvard case, “A race-conscious admissions program allows Harvard to achieve a level of robust diversity that would not otherwise be possible, at least at this time.”

This conclusion, upheld on appeal, relied greatly on Harvard’s Khurana report. It clearly reaffirms the importance of diversity in education not only in the educational setting, but in producing individuals who have gained intellect and experience through their education that make them more worldly, knowledgeable, empathetic, resilient, and generally better equipped to handle challenges and craft solutions that have positive and broad societal impact.

Precedent as a Predictor

Since its landmark decision in Brown v. Board of Education (1954), the U.S. Supreme Court has repeatedly addressed the complex issue of race and racism as it relates to education.

Over the last four decades, challenges to the use of race-based admissions criteria to promote diversity in higher education have repeatedly come before the Supreme Court, creating historical precedent beginning with the court’s decision in University of California v. Bakke in 1978, extending to Grutter v. Bollinger in 2003, and to Fisher v. University of Texas in 2014 (Fisher I) and in 2016 (Fisher II).

Courts have determined there is an undeniable and immeasurable benefit to viewing diversity as a permissible goal in educational settings. While certiorari has not yet been granted in the Harvard case, the First Circuit presumably laid the path to the Supreme Court with its decision affirming the importance of diversity in education.

The Supreme Court, as in the past, will apply strict scrutiny—its highest standard of review—to address the constitutional questions of whether the institution’s admission process serves a compelling, permissible and substantial interest, in this case diversity; and is narrowly tailored to achieve diversity and the academic benefits that flow from it.

X Factors That Will Affect the Final Outcome

The journey for a case to the Supreme Court often provides known factors that can serve as predictors of a probable outcome and, equally, unknown factors that can create uncertainty in the resolution. This case is no different.

Race relations in America are at a critical moment following protests and growing public discourse on the issue of race, racism, and the structures that have served as barriers to access for many and ladders to access for some.

While the Supreme Court in Grutter articulated a lofty expectation that, in 25 years, racial preferences would not be necessary to achieve a diverse student body, that has not come to pass.

Following months of civil unrest and protests over race in America, the nation is struggling with a global pandemic that has only further exposed the centuries-old epidemic of racism in this country. The district court in 2019 stated that the country is not yet at the point where race cannot be considered a factor in admissions.

Social and political climate challenge past precedent, and shape future precedent. The impact of variables such as timing and the new composition of the Supreme Court cannot be fully quantified. Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were not on the court when the issue of race as a factor in admissions was most recently decided and a presumed 6-3 pro-conservative split does not serve as a predictor or provide any certainty on an outcome.

The argument of those who opposed the use of race as a factor to be considered in college admissions is rooted, in part, in the belief that racism and systems that imposed barriers based on race in American society no longer exist. That argument has failed to overcome a principle that is of paramount importance in this country: Diversity matters, and its value is immeasurable, especially in education.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Kelley B. Hodge is labor and employment partner at Fox Rothschild LLP in its Philadelphia office. She advises corporations and governmental entities on workplace harassment, discrimination, human resources policies and risk compliance. She also advises, investigates and adjudicates Title IX and related matters at educational institutions. She previously was the first independent Title IX coordinator at the University of Virginia and is the former 25th district attorney of Philadelphia.