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The Harvard admissions case that could end affirmative action, explained

It involves a white man suing on behalf of anonymous Asian Americans college applicants.

People walk along a sidewalk on the campus of Harvard University, in Cambridge, Mass.
Students walk to class at Harvard University on July 16, 2019.
Steven Senne/AP

On Tuesday, Federal District Court Judge Allison Burroughs ruled that Harvard’s race-conscious admissions process is fair, and that it doesn’t discriminate against Asian-American applicants.

On the surface, the ruling is a huge win for affirmative action, as it upholds the university’s practice of considering a person’s race in the application process to create a more diverse student body. But the plaintiffs — an anonymous group of Asian Americans who were rejected from Harvard — have argued that Harvard caps the number of spots available to Asian students like them. Interestingly, the organization representing them is led by a white man. So yeah, it’s complicated.

The plaintiffs are planning to appeal the case, and if it ends up in front of the US Supreme Court, conservative justices like Neil Gorsuch and Brett Kavanaugh might end up outlawing affirmative action altogether.

Students for Fair Admissions v. Harvard largely focused on whether Harvard violated the Civil Rights Act by discriminating against Asian Americans. This question was not directly connected to affirmative action, which was established as a way to weigh the applications of marginalized groups (such as women or people of color) in school admissions, job applications, and other areas where they have been historically shut out. But with the case almost guaranteed to be appealed to the Supreme Court, the questions that it deals with could have a huge impact on school programs meant to increase racial diversity, and could even make them illegal.

During the trial, which began last October, the plaintiffs argued that the only way to truly ensure that Asian Americans stand an equal chance in admissions is if race is completely removed from the process. The university disagreed, saying that there is no cap on Asian students and that its “holistic” admissions process is necessary to ensure a diverse student body and does not discriminate against Asian American students.

Judge Burroughs sided with the university.

“At least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions,” Burroughs wrote in her decision.

The trial raised complicated questions about the meaning of academic merit, and what that should mean when we think about race in college admissions. For Asian Americans, the case has also revealed significant divisions in support for affirmative action, making it clear that the demographic can hardly be treated as a monolith.

“The court’s ruling today confirmed what the Supreme Court has repeatedly upheld: affirmative action policies expand equal educational opportunity for all people of color, including Asian Americans, and are legal,” said Vanita Gupta, president of the Leadership Conference on Civil and Human Rights.

Plaintiffs said Harvard limited the number of Asian Americans on campus

In November 2014, Students for Fair Admissions (SFFA) filed its lawsuit, alleging that Harvard is “employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program” that are biased against Asian American applicants.

The plaintiffs said internal data shows Asian American applicants are rated lower on personal metrics, despite outperforming white applicants in other areas. SFFA argued that Harvard effectively uses a quota to cap the percentage of Asian American admissions, and that the school engages in “racial balancing” to maintain a certain racial breakdown on campus.

To fix this, SFFA argued that Harvard, and ultimately all colleges, should no longer consider race in its admissions process, and that Supreme Court rulings in support of affirmative action have “been built on mistakes of fact and law.”

Harvard has defended its “holistic review” process that individually assesses each applicant and considers a number of factors, including academics, extracurriculars, and personal factors, with the goal of making each class diverse. The university says that while race is one of the many factors considered for assembling a class, it is never used against an applicant, nor is it a deciding factor for any applicant.

A white man created the group that sued

Identifying the plaintiffs in this trial is a bit complicated. SFFA represents a group of anonymous Asian American plaintiffs rejected from Harvard. The individual plaintiffs said they are remaining anonymous to avoid harassment for their part in the lawsuit.

Because of this, the public face of the trial was Edward Blum, a white, 66-year-old legal strategist. Blum leads the Project on Fair Representation, a group founded in 2005 to “support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.” Blum also created SFFA to “restore the original principles of our nation’s civil rights movement” by completely eliminating the use of race in college admissions. In addition to Harvard, the group is suing the University of North Carolina Chapel Hill on similar grounds.

Abigail Fisher stands with her attorney outside the Supreme Court in 2012. Fisher argued that she was not admitted to the University of Texas at Austin because of her race.
Abigail Fisher stands with her attorney outside the Supreme Court in 2012. Fisher argued that she was not admitted to the University of Texas at Austin because of her race.
Mark Wilson/Getty Images

Blum is known in legal circles for his efforts to get cases before the Supreme Court, all of them involving race in one way or another. In 1995, he was part of a group that brought Bush v. Vera before the court, successfully convincing the court to redraw several majority-minority electoral districts in Texas. He was also instrumental in Shelby County v. Holder, the case that gutted a key portion of the Voting Rights Act in 2013.

But Blum is perhaps best known for his work with Abigail Fisher, a white woman who argued in a pair of Supreme Court Cases in 2013 and 2016 that she was denied a spot at the University of Texas Austin due to her race.

Here’s how Blum described his work to Mother Jones in 2016:

Blum insists he is fighting for civil rights, and he is adamant that he’s not just seeking white plaintiffs with racial axes to grind. “Groups like mine are not looking for Donald Trump-type supporters. We are looking for people who have honest, levelheaded opinions about equal representation. We reject people who are anti-immigrant. We reject people who are anti-Muslim. We reject people who have an antithetical view of American civil rights laws.” He says his efforts to find plaintiffs are no different from what civil rights groups and “the marriage equality people” do.

Blum’s open desire to end any consideration of race in college admissions, coupled with his action on other race-related court cases, has led his critics to argue that he is using Asian Americans as a prop to strike down affirmative action.

The case stirred racial resentment

Up until now, most cases about race in college admissions have been brought by white plaintiffs like Fisher, who argue that they are harmed by “reverse discrimination” and therefore pushed out of colleges by less-qualified applicants of color. Those cases have led to restrictions in how affirmative action can be used, but no case has actually ended the practice in its entirety.

If the Harvard case goes to the Supreme Court, it could change this. Rather than a white plaintiff, this case relies on a group of high-achieving Asian Americans arguing that a policy meant to help students of color is actually hurting them. Unlike Fisher, whose GPA and SAT scores were not as strong as her peers, the plaintiffs in this case have academic records that are much harder to criticize.

An appeal could have a drastic effect on how elite schools use race in admissions — especially since last summer, the Trump administration rescinded Obama-era guidance on race in admissions, urging schools to adopt a race-neutral approach. The Department of Justice also filed a statement of interest siding with the plaintiffs in this case, arguing that Harvard “failed to show that it does not unlawfully discriminate against Asian Americans.”

The Trump administration’s involvement has made it clear that it sees discrimination against Asian Americans as something to solve by eliminating any consideration of race at all. With a solid conservative majority now in place following Brett Kavanaugh’s confirmation to the Supreme Court, there is concern that if this case makes it to the court, it will end affirmative action entirely.

Other colleges have been accused of the same thing

The Harvard case is not the first time that a college was accused of discriminating against Asian American students. In the 1980s, student activists noticed that Asian American college admission rates remained stagnant despite a rapid increase in the number of college-aged Asian Americans. They argued that the stagnation was largely due to biased admissions practices that kept the number of admitted Asian Americans relatively low, while favoring white applicants.

The complaints led to internal investigations of admissions practices at schools including Stanford, Harvard, Princeton, and the University of California Berkeley. While some schools, like Berkeley, maintained that they did nothing wrong and that Asian American students were overrepresented relative to their share of the general US population, Stanford acknowledged that unconscious bias may have played a role in its process.

When the Reagan administration addressed the allegations of discrimination against Asian Americans in the late 1980s, it ignored that much of the claimed discrimination may have benefitted white students, instead arguing that the biggest hurdle affecting Asian American applicants was the affirmative action programs aimed at helping racial minorities. As Vox’s Alvin Chang notes, Asian American students accused the Reagan administration of “racial mascoting.” Affirmative action is now often framed as hurting Asian-American college applicants.

Civil rights groups like the NAACP Legal Defense and Education Fund say this framing pits Asian Americans against other minorities and also ignores how affirmative action benefits those from less-represented Asian American and Pacific Islander subgroups. Research from academics Karthick Ramakrishnan and Janelle Wong has shown that most Asian Americans support affirmative action, although support has dropped off considerably among Chinese Americans.

Data shows that Asian American students are overrepresented at many of America’s most selective schools. At Harvard, for example, Asian American students were roughly 22 percent of those admitted in 2017 but Asian Americans were just 5 percent of the population.

Some observers, such as Yale Law’s Amy Chua, say that the success of Asian American students is largely due to cultural reasons, an argument that has often been used to frame Asian Americans as a “model minority.” But in 2014, a pair of California researchers found that Asian American students’ high level of achievement was more likely due to students having better access to resources and living and studying in close proximity to other high achievers due to a concerted effort by their families.

This isn’t to say that Asian Americans face zero bias in college admissions. Under the Obama administration, a Department of Education investigation into allegations of racial bias at Princeton, for example, revealed that admissions officers referred to Asian American applicants as “standard premeds” and “familiar profiles.”

The Education Department ultimately conceded that the admissions officers made comments “associated with Asian stereotypes,” but noted that similarly stereotypical comments were made about black and white applicants as well. The agency ultimately determined that the school did not discriminate against Asian American applicants and that race was not a deciding factor in the admissions process.

Protesters rallied on October 14, 2018, one day before the start of the Harvard admissions trial, to express dissatisfaction with policies they believe discriminate against Asian Americans.
Protesters rallied on October 14, 2018, one day before the start of the Harvard admissions trial, to express dissatisfaction with policies they believe discriminate against Asian Americans.
Jessica Rinaldi/The Boston Globe via Getty Images

SFFA said it has found evidence that proves Harvard is deliberately (and illegally) limiting the number of Asian Americans accepted, pointing to a part of Harvard’s holistic review process known as the “personal rating.” This part of the application process considers things like teacher recommendations, alumni interviews, and personal statements.

The plaintiffs say internal reports from Harvard’s Office of Institutional Research suggest the university regularly underscored Asian-American applicants on this portion of the review. They say Harvard regularly rated Asian Americans as less “courageous” or “less “likable” than white students, and admitted more whites than Asian Americans, despite Asian Americans besting whites on the other metrics.

Harvard countered that the reports were incomplete and did not fully capture the nuance of the school’s admissions process, and has said that weaker teacher recommendations are behind Asian American students’ lower personal ratings. Both sides presented dueling expert analyses over the data.

In the end, the judge ruled that Harvard’s actions were not discriminatory.

The controversy over affirmative action, explained

President John F. Kennedy established affirmative action programs for government contractors by executive order in 1961 to advance the goals of “nondiscrimination” within society at large. As the New Yorker’s Hua Hsu writes, the government did not create detailed guidelines on where or how affirmative action should be used. But as legal cases challenging affirmative action in college admissions increased in the 1970s, that became the main way the issue was discussed.

In some ways, framing affirmative action as problematic in college admissions isn’t entirely fair, and the conversation largely revolves around a small number of the most selective schools in America. At elite schools like Harvard, Princeton, and Yale, admissions officers argue that given the limited number of black and Hispanic applicants to elite colleges, being able to consider race is the only way that these schools can maintain a racially diverse student body.

The schools also argue that basing decisions solely on grades and test scores would be impossible. In a legal filing submitted before the trial, Harvard officials said the school received more than 37,000 applications for roughly 2,000 spots in the class of 2019.

The university said more than 8,000 of those applicants had perfect grades, and more than 5,000 had a perfect math or verbal SAT score. Considering things like a student’s extracurriculars, volunteer work, and race in addition to their grades, the school argued, is necessary to achieve a more diverse class than it could get through test scores alone.

The plaintiffs said this argument — plus internal Harvard reports that suggest the numbers of black and Hispanic students admitted to the school would drop significantly if the university were forced to change its admissions system — is proof that less-qualified students are getting in due to their race.

That counterargument gets at an issue that has long animated debates over affirmative action. Some say acknowledging an applicant’s race automatically means penalizing another more qualified applicant for being of a different race. Critics of Harvard’s policies argue that affirmative action programs create an unfair system of rewards and penalties in which black and Hispanic applicants win, and white and Asian American applicants lose.

Harvard alumni, students, and other protesters rallied on October 14, 2018, to expressive support for the university’s race conscious admissions process.
Harvard alumni, students, and other protesters rallied on October 14, 2018, to expressive support for the university’s race conscious admissions process.
Pat Greenhouse/The Boston Globe via Getty Images

But for Harvard and the civil rights groups defending its admissions policy, being able to consider race — even if it is just limited to Justice Kennedy’s “factor of a factor of a factor” framing — is necessary to ensure that students of color continue to make it to Harvard and similar schools.

Their claims are supported by data: A 2017 New York Times analysis found that even with race-conscious admissions policies in place, black and Hispanic students are actually less represented at America’s top colleges now than they were 35 years ago. The analysis notes that Asian American students have been the demographic with the most growth at many of these top universities.

It is that last point that so strongly triggers the emotional response to this case. Harvard and other elite schools are considered the best in America, where connections and a diploma can open up doors that can drastically change one’s future. The debate over who gets into Harvard is about more than the importance of test scores — it is about who has access to America’s elite institutions in an age when power is increasingly held by a select few.