Appellate Decision Could Send Affirmative Action to High Court

A federal appellate court found Harvard’s admission policies are not discriminatory

A case involving claims of discrimination against applicants to a prestigious college is one step closer to review by the U.S. Supreme Court. A federal appeals court in Boston delivered its ruling last month in a dispute involving Harvard University, marking the last step before the justices can take it up. The challenge to admission policies at Harvard could lead to a decision that changes how Colorado’s law schools weigh the racial background of aspiring students in their own admissions decisions.

An anti-affirmative action group called Students for Fair Admission sued Harvard in 2014, alleging that Asian-Americans who want to attend the institution suffer prejudice under a system that favors African-Americans and other racial minorities. Supported by the Trump administration, SFFA claimed Harvard’s admission scheme violates the Civil Rights Act of 1964.

The Nov. 12 ruling by the 1st Circuit Court of Appeals rejected that argument. The panel of judges ruled that SFFA had not demonstrated any violation of the Civil Rights Act of 1964. “They alleged that there’s racial balancing, which the court rejected,” David Hinojosa, director of the Education Opportunities Project at the Lawyers’ Committee on Civil Rights in Washington, D.C., said. “They alleged that race is a dominant and determinative factor, and they lost on that. They alleged that there are race-neutral alternatives that could be used in lieu of the consideration of race, and they lost on that.”

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Hinojosa said consideration of race by law school admission officers continues to be important as a way to assure diverse viewpoints in the profession and equal access to lawyers. “Many of the benefits that have been identified in the research show … deepening peoples’ understanding of race and its relevance to the creation of law is pivotal,” he said. “Do we just erase all of those important benefits and experiences that will help improve all students’ understanding and also still keep open the door to students of color? That’s one piece to it.”

“If we still want attorneys in the valley in Texas, if we still want them in the San Luis Valley in Colorado, then we need to make sure that we open the doors to students from those communities because they’re more likely to return,” Hinojosa continued. “I think law schools play that pivotal role in helping to ensure that all communities are represented in their student bodies.”

Administrators at the University of Colorado Law School and the University of Denver’s Sturm College of Law declined to comment on the Harvard case or its implications for their admissions practice, though a CU Law School statement highlighted its continued commitment to assuring the diversity of incoming classes. “Colorado Law was one of the first law schools in the nation to admit ethnically and racially diverse students,” said CU’s Kristine Jackson, an assistant dean in charge of admissions and financial aid. “We continue that charge by embedding diversity and inclusion into our recruitment, teaching, public engagement and overall culture.” 

Some commentators argue that affirmative action based on race is not necessary to improve access to legal education to a diverse student body. Richard Kahlenberg, a senior fellow at The Century Foundation and author of “The Remedy: Class, Race, and Affirmative Action,” argued that race-based admissions practices do not effectively promote more wealth among people of color. “Racial preferences do a good job of promoting racial diversity, which is important, but they rarely promote social mobility,” he said in an email. “Even with race-based affirmative action, you’re more than 37 times as likely to run into a wealthy student as a disadvantaged student at top law schools.” 

Kahlenberg pointed to data detailed in his own academic work and in an influential article published by University of California at Los Angeles law professor Richard Sander in 2004 as a source for his perspective. In the latter article, published in the Stanford Law Review, Sander argued that race-based admission programs result in “more harms than benefits for its putative beneficiaries.”

Jin Hee Lee, senior deputy director of litigation at the NAACP Legal Defense and Educational Fund, considers the debate over whether to consider socioeconomic status instead of racial background in admissions decisions to be a diversion. “This idea that you can just rely on socio-economic status is something of a myth because, if that was the case, colleges and universities would have been doing that,” she said. She explained that consideration of socioeconomic status instead of race when law schools seek to broaden the diversity of incoming classes would likely benefit mostly white students because there are more white students in poverty or other economically damaging situations than there are people of color who desire to attend law school and who endure similar circumstances.

In both its dispute with Harvard and another lawsuit filed against the University of North Carolina at Chapel Hill, SFFA seeks a ruling that colleges and universities cannot consider race at all in admissions deliberations. Whether the Supreme Court would accept an invitation to reconsider its existing doctrine that permits post-secondary institutions to do so is not clear. “That is something the court has rejected ever since it started hearing these types of cases more than 40 years ago in the Bakke decision,” Hinojosa said. “They’re challenging it because they think they have an activist court that will throw out affirmative action in higher education altogether and won’t even allow [race] to be considered holistically.”

Hinojosa, who signed an amicus brief filed in the Harvard case, was referring to the 1978 plurality decision in Regents of the University of California v. Bakke, which banned racial quotas in admissions but allowed consideration of ethnicity and race in admission decisions. Hinojosa believes there might not be enough justices to grant SFFA’s wish. “The question came up in Fisher, and eight out of the nine judges at that time said, ‘hey, the consideration of race is allowable, it’s constitutional, here’s how you need to look at it,’” he said. “They fine-tuned the Grutter standard.”

Hinojosa referred to Fisher v. University of Texas, a 2013 U.S. Supreme Court decision that said a demanding standard known as “strict scrutiny” applies to affirmative action policies and that did not address whether Bakke should continue to be recognized as a valid precedent. Grutter v. Bollinger, a 2003 opinion of the court held that consideration of race as part of a suite of factors on an individual basis is lawful.

Lee said she is skeptical that the justices will be willing to take affirmative action jurisprudence in another direction. “Just a few years ago the Supreme Court reaffirmed the precedents it established in multiple prior cases that [say] race-conscious admission is permissible,” she said.

Colorado, which saw voters reject a proposed initiative to ban affirmative action in 2008, remains firmly supportive of race-conscious admissions as a way to assure equal educational opportunity. “A commitment to diversity is critical to providing students with educational opportunities that will prepare them for success in an increasingly competitive, multicultural global economy and society,” Attorney General Phil Weiser, who signed a multi-state amicus brief in support of Harvard in the 1st Circuit case, said. “Colleges and universities play an important role in ensuring that our students obtain the educational benefits of diversity, and these institutions must have the flexibility to design admissions policies that promote diversity in a way that aligns with the Supreme Court’s Grutter decision.”

The North Carolina dispute has not yet been decided. Trial was concluded on Nov. 19, with the parties’ proposed findings of fact and conclusions of law due in mid-December. There is no deadline for the federal district judge hearing the case to reach a decision.

SFFA has until mid-February to file a petition for certiorari in the Harvard case, Hinojosa said.

— Hank Lacey

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