- This week, a group that opposes affirmative action sued Harvard and the University of North Carolina-Chapel Hill over their admissions policies.
- The lawsuits argue that UNC and Harvard are considering students' race in admissions even though it's not necessary to create a diverse student body. They also argue that Harvard has a quota for Asian American students.
- The Supreme Court has sometimes indicated it's open to reconsidering the constitutionality of affirmative action — even though a court opinion in 2003 labeled the matter settled for a generation.
Does Harvard have a quota for Asian-American students?
The plaintiff in both lawsuits is Students for Fair Admissions, an association of anonymous students and parents who oppose affirmative action. One member, the child of Chinese immigrants, was rejected from Harvard despite graduating as valedictorian from a well-regarded high school, earning a perfect score on the ACT, and volunteering and participating in extracurricular activities in high school.
Last year, 94 percent of all applicants to Harvard were rejected. So the anonymous student's experience is hardly unusual. But the lawsuit outlines what plaintiffs say is a long history of discrimination against Asian-Americans at Harvard, drawing parallels to the university's history of discrimination against Jews. The lawsuit argues that Harvard has what amounts to a de facto quota for Asian Americans. The Supreme Court forbade racial quotas in college admissions in 1978.
Asian-American students make up a higher proportion of the student body at selective colleges than they do the population as a whole. But they are also rejected at higher rates than white students, and those admitted tend to have higher test scores than students of other races. That could be because some admissions preferences — such as legacy admissions, preferences for athletes, and top colleges' preference for a geographically diverse student body — don't help Asian students. (Vox's Matt Yglesias summed this all up in Slate in 2008.)
In 1990, the US Education Department's Office for Civil Rights investigated and decided that admissions preferences for the children of alumni and for athletes were to blame — not racial quotas. In 2012, the department started investigating Harvard and Princeton again, but those investigations were cut short when the students who filed the complaints withdrew them.
The question is whether Harvard is using race as one, unavoidable factor in building a diverse student body, or whether it's doing more than that and establishing a quota of Asian students.
The lawsuits' main goal: get rid of affirmative action entirely
The lawsuit against UNC doesn't accuse the university of a quota system. Instead, it argues that UNC is considering race when the college could create a diverse student body in other ways, such as taking the top 10 percent of graduating high school classes in the state. The case against Harvard makes the same argument, arguing the college could get rid of legacy admission and pay attention to socioeconomic class rather than race, but the claim of an Asian-American student quota is getting the most attention.
This is important because the Supreme Court recently reinforced the idea that affirmative action should be a last resort to create a diverse student body. In Fisher v. Texas, decided in 2013, Abigail Fisher, a Texas student, had been rejected from the University of Texas at Austin. The Supreme Court didn't decide whether Texas' affirmative action policy was constitutional. Instead, it said the lower courts didn't apply a high enough legal standard in its decision, and sent the case back to the Fifth Circuit. (The Fifth Circuit reheard the case and again decided in the university's favor.)
Lower courts shouldn't just take colleges' word for it that affirmative action is the only way to get a diverse student body, the court wrote. They should apply "strict scrutiny" and be satisfied that there are no alternatives that would also work.
The latest lawsuits argue that Harvard and UNC are ignoring those alternatives. At the same time, the plaintiffs are honest about their actual goal: getting rid of the consideration of race in admissions entirely, not just making sure that programs fit the requirements the Supreme Court has previously established.
"Given what is occurring at UNC-Chapel Hill and other schools, the proper response is the outright prohibition of racial preferences in university admissions—period," the lawsuit reads.
How far will the lawsuits go?
It's not clear how far these cases will go, but three things could eventually nudge the lawsuits toward the Supreme Court. They're filed under the jurisdiction of two separate federal circuit courts, meaning the case could, hypothetically, one day end in a split decision between two circuits. This makes it more likely that the Supreme Court will eventually take the case.
The Project on Fair Representation, the group representing Students for Fair Admissions, is also incredibly persistent. They represented Abigail Fisher in Fisher v. Texas, and plan to appeal the Fifth Circuit's decision to the Supreme Court yet again. This means the case could end up before the court for the second time in an upcoming term. Even if that doesn't happen, Students for Fair Admissions and the Project on Fair Representation are still seeking out new plaintiffs — suggesting that they plan to continue to file lawsuits.
And at least a significant minority of the Supreme Court has signaled it's willing to rethink affirmative action. That's probably why they heard the Fisher case in the first place, even though the majority wrote in a 2003 opinion that affirmative action might be necessary for the next 25 years. The more lawsuits are filed, the more likely it is that affirmative action's opponents will get another day in court.