Appeals court: Harvard's admission policy does not discriminate against Asian Americans

This photo of Harvard was taken before the coronavirus pandemic.

Harvard University did not discriminate against Asian American applicants in its admission process an appeals court ruled Thursday (Nov. 12), setting up a likely showdown at the Republican-packed U.S. Supreme Court.

The decision by the First Circuit Appeals Court  agreed with a district court ruling made that Harvard's use of race in admissions was legal. In September, U.S. District Judge Allison Burrough rejected allegations by some Asian American students who claimed the school systematically discriminated against them with its admissions policy, which considers factors beyond test scores to decide who gets accepted at the prestigious school

"The issue before us is whether Harvard's limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent," Appeals Court Judge Sandra Lynch in the ruling. "There was no error."

"Today's decision once again finds that Harvard's admissions policies are consistent with Supreme Court precedent, and lawfully and appropriately pursue Harvard's efforts to create a diverse campus that promotes learning and encourages mutual respect and understanding in our community," said Harvard spokeswoman Rachael Dane . "As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity."

The lawsuit against Harvard was raised by Students for Fair Admission. The group said it will probably appeal to SCOTUS. It will be the first affirmative action case for the new conservative-dominated court and newly installed activist Justice Amy Coney Barrett.

"While we are disappointed with the opinion of the First Circuit Court of Appeals, our hopeis not lost," Edward Blum, the anti-affirmative action advocate who leads SFFA said. "This lawsuit is now on track to go up to the U.S. Supreme Court where we will ask the justices to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities."

SFFA's cause was hurt in the lower courts because none of the Asian Amerian applicants supposedly harmed by Harvard's admission policy did not want to testify in court. Harvard, in contrast, produced students of various ethnicities who spoke about the benefits of having a diverse student body.

More than 40,000 students applied to Harvard's undergraduate college this fall, and fewer than 5% were offered admission. Of those admitted, Harvard said 24.5% identified as Asian American, 14.8% as African American or Black, 12.7% as Latinx and 1.8% as Native American.

EDITOR'S NOTE: A word of caution, this is news sprinkled with opinion. Readers are encouraged to seek multiple news sources to formulate their own positions.

Appeal court judges pound DOJ attorneys in arguing against Harvard's affirmative action case

A three-judge panel of the 1st U.S. Circuit Court of Appeals challenged the Department of Justice attorneys who allege that Harvard's admission process discriminates against Asian Americans.

When a lawyer for the Students for Fair Admissions accused the school imposing a "racial penalty" on Asian Americans, one of the panelists interrupted and questioned the basis of the claim.

“Where is the evidence of racial profiling here?” challenged Judge Juan Torruella last Wednesday (Sept. 16) when the appeal hearings of SFFA v. Harvard began in the Boston court.

“Attacks on race-conscious admissions policies are dangerous and harm equal opportunity for all," said a statement from Asian Americans Advancing Justice. The case against Harvard used Asian Americans as a wedge against other students of color, when Asian American students benefit from affirmative action and race-conscious admissions policies.

"We still need affirmative action," continued the statement. "The reality is that race continues to unfairly limit educational opportunities for all students of color. Cold numerical indicators like grade point averages and standardized test scores capture and magnify those inequalities and cannot be fairly evaluated without considering the real-life impact of race and racism. Nor are standardized test scores accurate predictors of academic success. Our full life experience, including race, is also part of what we bring to the table."

SFFA, an anti-affirmative action group, is using Asian Americans as a front to dismantle Harvard's admissions process that includes race as one of the factors in evaluating student applications. Although none of the Asian American students allegedly rejected by Harvard failed to appear in court, SFFA claims racial stereotypes work subjectively against Asian applicants to Harvard.

SFFA claims that Black and Hispanic student applicants  with lower test scores were taking the place of bettere qualified Asian American students.

NAACP Legal Defense and Education Fund Senior Deputy Director Jin Hee Lee, representing 26 Harvard-affiliated organizations,  made clear the difference between race-conscious admissions and racial stereotyping.

“Every one of the organizations that I represent condemns race discrimination against any person,” Lee said. “But this case does not seek to eliminate bias against Asian Americans, as demonstrated by the sole remedy that SFFA gives, which is the complete elimination of race conscious admissions and nothing more.”

In one of the sharpest exchanges Judge Sandra Lynch strongly questioned lawyers challenging Harvard's affirmative action policies on Wednesday, implicitly disputing their claims of bias against Asian American students and assertions of Supreme Court precedent.

"You started out by saying that the Harvard system is intentionally discriminatory because it uses subjective criteria," Lynch told William Consovoy, representing SFFA. "But in the Bakke case, which of course binds us, they also used subjective criteria and talked glowingly of Harvard's plan at the time."

Lynch was referring to Regents of the University of California v. Bakke, the 1978 case in which the Supreme Court first allowed colleges to use race as a "plus" factor in admissions for campus diversity.

"We're saying it is more susceptible to bias infiltrating the system," clarified Consovoy, "because it uses subjective criteria. ... I think that's just common sense."

Almost a year ago, U.S. District Court Judge Allison Burroughs ruled that Harvard’s admission policies don’t discriminate on the basis of race, don’t engage in racial balancing or use quotas, and don’t place undue emphasis on race in considering applicants’ admissions files, according to CNN. In his ruling, the judge suggested that Harvard couldn’t offer students the benefits of a diverse campus if it stopped considering race in admissions.

In an emailed statement immediately following the conclusion of oral arguments, SFFA President Edward Blum said his organization was ready to challenge the District Court’s ruling to the end.

“It is our hope that this court will carefully examine the massive amount of irrefutable evidence we presented at trial that proved Harvard’s systematic discrimination against Asian-Americans and reverse the lower court’s ruling,” Blum said. “If necessary, Students for Fair Admissions is prepared to take this case to the U.S. Supreme Court.”

EDITOR'S NOTE: A word of caution, this is news sprinkled with opinion. Readers are encouraged to seek multiple news sources to formulate their own positions. 

Judge rules Harvard admissions doesn't discriminate against Asian Americans

Harvard students rallied in favor of the university's admission policies before the trial begain in 2018.

Harvard's affirmative action policy "passes constitutional muster" and doesn't discriminate against Asian Americans ruled a federal judge Tuesday (Oct. 1).

In U.S. District Court for the District of Massachusetts federal Judge Allison D. Burroughs issued her decision, saying "the Court finds no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans." In the decision, Burroughs said that while Harvard's admissions program is "not perfect," "ensuring diversity at Harvard relies, in part, on race conscious admissions."

“Ultimately, the Court finds that Harvard has met its burden of showing that its admissions process complies with the principles articulated by the Supreme Court in Fisher II,” she wrote, referring to an earlier affirmative action challenge, Fisher v. University of Texas, which was instigated by anti-affirmative action advocate Edward Blum.

Blum was also president of Students for Fair Admissions (SFFA), which reportedly represents several Asian American students in the case against Harvard. Blum said he was disappointed in Burrough's ruling.

"SFFA will appeal this decision to the 1st Court of Appeals and, if necessary, to the U.S Supreme Court," he said.

Blum's statement demonstrates that while the Boston court trial is over, the debate over affirmative action is far from over. With the conservative majority currently in the Supreme Court, civil rights advocates fear that affirmative action could still be overturned.

Tuesday's "decision is a critical victory for Asian American students, who benefit from affirmative action and support race-conscious admissions policies,” said Aarti Kohli, executive director of Advancing Justice - Asian Law Caucus. “While we must do more to ensure that Asian American students do not face unequal opportunities through harassment, stereotyping and language barriers, the use of race-conscious admissions policies — which safeguard against discrimination — is an important step.”

Rep. Judy Chu, D-CA, said, “It is shameful that the educational playing field remains unequal for so many students of color, including many within the Asian American and Pacific Islander (AAPI) community who continue to face significant barriers to attaining a college degree. 

"For instance, only 14% of Laotians, 16% of Cambodians, and 19% of Pacific Islanders have a bachelor’s degree. These educational disparities show us why it is important to expand opportunities to higher education for all students, including AAPIs, who have benefited from race-conscious admissions policies that help to level the playing field," she continued.

Harvard University President Lawrence S. Bacow wrote in a statement Tuesday that the College’s consideration of race in its admissions process “helps us achieve our goal of creating a diverse student body that enriches the education of every student.”

“Everyone admitted to Harvard College has something unique to offer our community, and today we reaffirm the importance of diversity—and everything it represents to the world,” he wrote.

“I applaud the Harvard students who made their voices heard in this case and during the trial. They made vividly clear the benefits of student body diversity,” he wrote. “I also saw firsthand the intense commitment of many, including all those who testified, and who defended and supported the University, with tremendous acumen and skill, and I am deeply grateful for their excellent work.”

HARVARD UNIVERSITY

None of the Asian American students SFFA purportedly represents didn't want to testify during the trial. The testimony of the students in favor of affirmative action played a major factor in Burrough's decision. She wrote that their testimonies showed how race played a critical role in their experiences before and during their time at Harvard.

"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" she wrote. "They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet."

The basis for Blum's lawsuit was that Harvard discriminated against Asian applicants who had higher test scores than some of the students admitted through Harvard's admission policies which considers race as one factor in looking at a student holistically.

The trial and debate also exposed an apparent schism in the Asian American community that Blum took advantage of. Generally, it pitted long-time AAPI civil rights organizations against newer immigrants -- primarily from China -- who pushed for a pure meritocratic evaluation of test scores, GPA and extracurricular activities without out taking into account other socio-economic factors -- including race -- in an applicant's background.

With the focus on Harvard's admissions, researchers also learned that the university had a high proportion of so-called "legacy" students, who are children of large donors, alumni, children of alumni or who have special skills, such as athletics. Roughly three-quarters of white legacy students would have been rejected if they had been treated the same as non-white legacy students. 

“As an Asian American, affirmative action helped give me a fair shot in Harvard’s application process,” said student Sally Chen, who testified in support of Harvard in the trial last fall. “The court made the right decision for Asian Americans, for diversity in education, and for all of the students like me who believe race is an important part of our identity and something we deserve to be able to share. The fight for racial equity is far from over. I will continue to fight for race-conscious policies on behalf of other Asian American students at Harvard and across other college campuses.”

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Judge sees flaws on both sides in Harvard admissions case

U.S. District Judge Allison Burroughs has heard the final arguments from both sides on Harvard's admission policies and will now attempt to untie the Gordian Knot.

Burroughs, who presided over the three-week trial last year, said Wednesday (Feb. 13) she would "get to work on this." She didn't say how long it would take to write her ruling.

The plaintiff, Students For Fair Admissions, claims that Harvard discriminates against Asian Americans in its admissions process. The Ivy League university says a ruling against affirmative action  would reduced the number of African American and Latino students.

The judge made it clear that both sides' arguments were inadequate. She asked why the plaintiffs didn't present any actual students who felt they were victims of bias. She also felt that evidence provided by SFFA may have shown that Asian applicants lost points under the subjective  "personal" category.

“They  (SFFA) have the victim problem, but you guys have that personal rating,” Burroughs told Harvard's lawyers.

Harvard's attorney William Lee argued that "the plain failure to produce a single individual or a single (admissions) file.... is truly remarkable." He contended that claims of bias against Asian Americans were not supported by the testimony.

Lee said that Asian American applicants generally fare well in the school's admissions process. Students of Asian descent have dramatically increased since the 1980s and have been steadily rising in recent years, he said.

In arguing for a more diverse student body, Harvard also had to defend the practice of "legacy" admissions for children of prominent alumni and donors. If the judge rules against the present admission process, she might also affect those special admitees, who might score as well academically.

The applicants represented by SFFA claimed that less qualified applicants were being admitted at the expense of high-scoring Asian Americans.

For this year's Freshman class, Harvard reported that Asian Americans made up 23% of the class. African Americans were at about 15% and Latino students at 12%. A category comprised mostly of white students was 50%.

Harvard receives about 40,000 applications every year but only have 1,600 openings.

The case also revealed a deep split in the Asian American community. Although a majority of Asian Americans support affirmative action, a vocal minority was able to garner the support of conservatives who see a chance to undo the program that was signed into law by President John F. Kennedy in 1961.

Once Burroughs rules, any appeal would be made to the 1st US Circuit Court of Appeals and then to the Supreme Court, where conservatives, who are in the majority, would most likely rule against affirmative action.
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