A few weeks ago, the United States District Court of Massachusetts issued its long-awaited decision in the lawsuit brought by Students for Fair Admissions, Inc. (“SFFA”) against Harvard University (“Harvard”).  In a 130-page decision, the court found in favor of Harvard, holding that Harvard’s race-conscious admissions process was lawful.

After the ruling, SFFA President Edward Blum said in a statement that he was disappointed by the ruling and, “SFFA will appeal this decision to the First [Circuit] Court of Appeals and, if necessary, to the U.S. Supreme Court.”

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (Harvard Corporation)

In 2014, SFFA, an anti-affirmative action group representing a group of Asian-American students rejected by Harvard, claimed that Harvard systematically discriminated against Asian-American applicants during its admissions process. Throughout the lawsuit and over a two-week long trial, SFFA argued that Harvard’s race-conscious admissions process favored black and Hispanic applicants at the expense of Asian-American applicants.  Additionally, SFFA claimed that, while diversity is important in higher education, Harvard’s emphasis on racial diversity was too narrow and that Harvard should be more focused on achieving diversity through economic diversity.

During the trial, Harvard’s evidence demonstrated that its race-conscious admissions process intentionally considered race among a variety of factors in its admissions process.  While Harvard did not have a quota for any one racial group, it tracked the level of racial diversity in each admissions class with the goal of providing a diverse student body.

The district court found that Harvard’s admissions process was lawful, noting that “[t]he Court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better.” Thus, the district court rejected claims that Harvard discriminated against Asian-American applicants through its admissions process.

Current Law and Guidance

 Supreme Court precedents now allow race-conscious polices if they satisfy strict judicial scrutiny – that is if they are narrowly tailored to serve a compelling governmental interest, such as remedying past discrimination or promoting the educational benefits of diversity.  Moreover, schools should also rely on the Supreme Court’s most recent decision addressing affirmative action in education: Fisher v. University of Texas.  Fischer, which reached the Supreme Court in, shows that while a majority of the Justices at that time believed race-conscious admissions practices could be constitutional in some circumstances, the Court also intended to apply the strict scrutiny standard aggressively. In a 4-3 decision, the Court narrowly ruled in favor of the University and upheld the consideration of race in a holistic review of an applicant’s file. The Court stated their affirmance of the University’s admissions policy did not mean the University could rely on that same policy in the future without refining it and advised the University that it was obligated “to engage in constant deliberation and continued reflection regarding its admissions policies.”

In reviewing any race-conscious policies or practices educational institutions should remember not only that they are subject to strict scrutiny under the Equal Protection Clause, but also that many are affected by state law restrictions.  The Supreme Court ruled in 2014 that each state has the right to prohibit the use of race preferences in school admissions. As a result, eight states (Arizona, California, Florida, Michigan, New Hampshire, Nebraska, Oklahoma, and Washington) now have laws prohibiting race-based affirmative action at all public universities.

The Harvard Decision’s Potential Impact on Other Educational Institutions

The precedential impact of the District Court’s decision is limited, and the case may be viewed as simply the first step in what promised to be a lengthy process.  The plaintiffs in this case clearly hope to get appellate courts to strike institutional race-conscious practices[1] and likely will push the Supreme Court reconsider its precedents on this issue.

In some ways, even though the District Court upheld Harvard’s policy, this case also underscores the relatively narrow circumstances in which race-conscious admission programs are permissible.  For example, even though Harvard’s admissions policies have previously been held up by the Supreme Court as model of a constitutional method of affirmative action, the record in this case showed that that Harvard took remarkable steps to monitor and revise its practices to make sure that they could withstand strict scrutiny.

It is also worth noting that the U.S. Department of Education Office for Civil Rights (“OCR”) has several outstanding Title VI-related investigations pending against institutions and it is possible that OCR also may seek to reshape the legal landscape in this space. OCR, under the Trump Administration, has supported a rollback of affirmative action and race-conscious admissions policies. In 2018, for example, OCR and the U.S. Department of Justice rescinded the Obama Administration’s guidelines that provided step-by-step instructions for how to constitutionally consider race in elementary, secondary, and postsecondary institutions.  Later, in 2019, the Trump Administration reached an agreement with Texas Tech University’s medical school where Texas Tech University agreed to stop considering race in its admissions process.

The Harvard decision, the related litigation that is pending against other schools, and the policy changes from OCR are all reminders that educational institutions should consider reviewing their policies and practices regarding affirmative action and race-conscious decision making to ensure they comply with relevant federal and state laws. It is also an appropriate time to consider whether benchmarking is necessary to evaluate what other schools are doing in this area. John W. Borkowski and Aleks O. Rushing, two of the authors of this post, will be presenting on how to navigate these issues in their presentation “Advising School Districts on the Law Through an Equity Lens” as the general session presenters at the COSA School Law Practice Seminar.

[1] SFFA has filed similar lawsuits challenging affirmative action at University of Texas at Austin and the University of North Carolina at Chapel Hill.