Harvard’s ‘Race-Conscious’ Admissions Face Court Challenge From Student Group


Sally Chen’s parents are Chinese immigrants whose education didn’t reach beyond high school, but that didn’t stop her from being fully involved at Lowell High School in San Francisco, where she was student body president and a youth radio volunteer, or scoring a stellar 2150 on the SAT. She then achieved the dream of many academic stars:  admission to Harvard University.

“Having the opportunity to discuss my racial background in my personal statement along with my extracurricular activities and interest in physics, computer science and government gave the school a holistic view of who I am,” Ms. Chen told PacerMonitor. That statement helped propel Ms. Chen, now 21 years old, to Harvard, where she will start her senior year in September.

“When I was starting college applications, my junior year in high school, I didn’t think that Harvard or any other Ivy League school was a realistic goal, but I wanted to give it a shot and present my case as best as I could,” Ms. Chen said. “Reading about my identity as a low-income Chinese-American woman was compelling to my admission readers.”

Having had an obviously productive experience in the Harvard admissions process, Chen felt compelled to get involved with an amicus brief written in defense of the university when she heard that an organization had sued Harvard University in U.S. District Court alleging discrimination against overqualified Asian applicants.

At the forefront of the litigation is the allegation that the percentage of Asian Americans admitted to Harvard has decreased. According to Harvard’s website, the class of 2021 is 14.6% African-American, 22.2% Asian-American, 11.6% Hispanic and 2.5% Native-American or Pacific Islander, and according to a statement released online by Harvard University in June, “a thorough and comprehensive analysis of the data and evidence makes clear that Harvard College does not discriminate against applicants from any group, including Asian Americans, whose share of the admitted class has grown by nearly 30% since 2010.”

“We absolutely believe that the evidence does not support the position that overqualified Asian applicants are being discriminated against by Harvard’s race-conscious admissions,” said Brenda Shum, director of the Educational Opportunities Project with the Lawyers’ Committee for Civil Rights Under Law.

The case, Students for Fair Admissions v. President and Fellows of Harvard College, was filed under Title VI of the Civil Rights Act of 1964 and attempts to prohibit the prestigious university from “engaging in intentional discrimination on the basis of race and ethnicity.”

Edward Blum, who founded the SFFA nonprofit group, is vocal about his support of litigation against what his website labels racial classifications and preferences in college admissions that are unfair, unnecessary and unconstitutional.

“SFFA believes schools can craft their own admissions policies, but race and ethnicity must not be a factor,” Mr. Blum told PacerMonitor in an emailed statement, echoing the organization’s November 2014 complaint.

“Harvard has long since abandoned an admissions policy that purported to merely use race contextually to fill the last few seats in the entering freshman class,” wrote SFFA attorney William Consovoy. “Harvard now labels every applicant by race on the claim that it is pursuing the so-called ‘critical mass’ diversity objective.”

Harvard University didn’t respond to requests for comment.

The term “critical mass,” as it relates to diversity objectives, was first applied in Abigail Fisher v. University of Texas at Austin, where in 2012 the U.S. Supreme Court granted Ms. Fisher’s petition for writ of certiorari.

“The Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity,” states the SCOTUS opinion. “Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings.”

For the second time, the Fifth Circuit Court of Appeals ruled that the University of Texas at Austin can use race in its decisions and Ms. Fisher’s request for all Fifth Circuit justices to hear the case, as opposed to a panel, was denied.

Although the University of Texas at Austin has remained victorious, critics of SFFA claim the group refuses to accept no for an answer. “There’s probably some hope on the part of the plaintiff that if the Supreme Court changes its composition with the addition of Brett Kavanaugh, for example, that a new panel might be more receptive to hearing this challenge that was recently decided by the Supreme Court in the Fischer case,” said Dennis Parker, an attorney with the ACLU’s Racial Justice Program. Mr. Kavanaugh, a federal appeals judge in the District of Columbia, was nominated by President Donald Trump last month to the Supreme Court bench.

On July 30, the Lawyers’ Committee For Civil Rights Under Law filed their brief on behalf of a diverse group of Asian-American, Black, Latino, Native American, and Pacific Islander students requesting that Massachusetts District Judge Allison D. Burroughs affirm through summary judgment that Harvard’s limited, individualized consideration of race to promote diversity complies with the U.S. Constitution.

“There is a tendency to view all Asians as a monolithic entity, which has erased the complexity of the Asian-American experience,” states the brief. “As students can attest, the life experiences of Asian Americans and Pacific Islanders reflect a wide variety of unique experiences reflective of a broad range of comparative privilege  and disadvantage that institutions should be permitted to consider when making an offer of admission. Generic references to ‘Asian American’ students perpetuates the ‘model minority’ myth and discounts the specific needs and challenges faced by distinct subgroups of Asian students.”

The amicus filing by the lawyer committee follows recent action by the U.S. Department of Justice and a move by the U.S. Department of Education to rescind Obama-era guidance documents that explain the parameters of affirmative action in higher education, which the ACLU labels disturbing.

“Exactly what the intent of the Justice Department and Department of Education is in rescinding the Obama-era guidance is a little unclear,” Mr. Parker told PacerMonitor. “It is very likely that they will join the plaintiffs in attacking Harvard, which again we would find to be a disturbing change in policy by the federal government.”

The ACLU is preparing to file its own amicus brief within the next 30 days. “Our position is that diversity is a legitimate, compelling governmental interest and so we think the Harvard race-conscious admissions policy should be upheld,” the ACLU’s Mr. Parker told PacerMonitor. “The outcome the plaintiffs are looking for would be an admissions policy that benefits white applicants and would have a really negative impact on black, Latino, Native American and many Asian applicants so we think this lawsuit against Harvard is very disturbing.”

The American Asian Legal Foundation and the Asian American Coalition for Education allege in their support of SFFA that Harvard’s treatment of Asian American applicants in the college admissions process is contrary to the Constitution’s mandate that all individuals enjoy equal protection of the laws.

“Evidence that is beyond reasonable dispute establishes Harvard treats Asian American applicants differently from others, holding them to a higher bar in order to maintain very obvious racial quotas for admissions,” wrote attorney Marc J. Randazza. “Particularly troubling is the fact that Harvard accomplishes its racial balancing in large part by having its admissions officers assign Asian American applicants a significantly lowered ‘Personal’ rating in a secretive, ‘black box’ process to counter their otherwise above-average academic and extracurricular achievements.”

But groups representing students of all colors, including Asians and their subgroups, are leery. “We are concerned that Edward Blum is using Asian Americans to divide students of color, and as a cover for his direct attack on race-conscious admissions,” Ms. Shum told Pacer Monitor. “The law is clear that colleges and universities may use race as a part of a holistic admission process as long as it is narrowly tailored to achieve the educational benefits of diversity.”

Other groups that also filed briefs as friends of court in defense of Harvard include Harvard-Radcliffe Black Students Association, the Native American Alumni of Harvard University, the Harvard Islamic Society, the Harvard Latino Alumni Alliance and the American Council on Education.

“What the Supreme Court decided in the University of Texas Fisher case is still good law,” Mr. Parker said. “It’s a statement by the Supreme Court that diversity is an important national interest, which is valuable for schools and for the country and efforts should be taken by schools to create learning environments that are diverse.”

While the case is litigated, Asian-American students find themselves cast in a confusing light that pits a common stereotype with the realities of living in America.

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