Harvard University won a second resounding legal victory Thursday when the US First Circuit Court of Appeals affirmed that the college did not discriminate against Asian-American applicants.
Harvard’s use of race in admissions met the requirements of the law, and US District Judge Allison D. Burroughs correctly ruled in favor of the university last year, the two-panel appeals court found.
“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,” wrote Appeals Court Judge Sandra Lynch. “There was no error.”
But with the case poised for potential review by the US Supreme Court, the future of affirmative action in college admissions nationwide has never been more at risk, legal experts said.
“If I were proponent of affirmative action, I would be very nervous,” said Kevin Brown, a professor at the Indiana University Maurer School of Law, who has studied school desegregation and affirmative action.
With President Trump’s three judicial appointments, the Supreme Court has become far more conservative since 2016, the last time it heard an affirmative action case and upheld the use of race as a factor in admissions, Brown said.
Justices John Roberts, Samuel Alito, and Clarence Thomas have expressed a desire to strike down more than 40 years of legal precedent upholding race-conscious admissions. If the Supreme Court agrees to hear the Harvard case, which could happen as early as next fall, it would send a strong signal that they have the votes to end the practice, Brown said.
“The only reason you take this case is you want to revisit whether you want to use race in admissions,” he said.
On Thursday, even as Harvard celebrated its legal victory, its president, Lawrence S. Bacow, noted that the fight is far from over.
"The consideration of race, alongside many other factors, helps us achieve our goal of creating a student body that enriches the education of every student,” Bacow said. “Diversity also represents a pathway for excellence for both Harvard and the nation. We will continue to defend these principles and our admissions process all the way to the Supreme Court, if necessary.”
Students for Fair Admissions, which had brought the lawsuit against Harvard, said it was disappointed but not discouraged by the appeals court decision.
“Our hope is not lost," said Edward Blum, president of the organization. "This lawsuit is now on track to go up to the US 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.”
Students for Fair Admissions has argued that Harvard admits Asian-Americans at lower rates, considering their share in the applicant pool. The group has also contended that Asian-Americans score lower on the personal rating, which Harvard uses to evaluate candidates and measure qualities such as courage, kindness, and leadership.
The trial lasted more than three weeks in 2018, and both sides relied heavily on detailed testimony from experts who analyzed several years of Harvard’s admissions data.
Burroughs, in a 130-page decision, offered a robust defense for the continued use of race in admissions. Although the judge said that Harvard’s admissions process could be improved with more training and monitoring to avoid potential implicit bias, she called Harvard’s admissions process “very fine” and legally sound.
Burroughs' detailed decision and factual analysis of why she found that Harvard did not intentionally discriminate against Asian-Americans makes this case somewhat complicated for the Supreme Court to review, and the justices could decide to punt, said Erwin Chemerinsky, dean of the University of California Berkeley School of Law.
Other affirmative action college admissions cases still in the lower courts could offer the Supreme Court further opportunities to consider the issue, Chemerinsky said.
Students for Fair Admissions has sued the University of North Carolina Chapel Hill, arguing that race is a significant factor in its admissions process, which unfairly helps Black, Hispanic, and Native American students and hurts white and Asian-American applicants. The trial in that case began this week.
Blum’s group has also brought a lawsuit against the University of Texas Austin and is seeking to join the Justice Department’s case against Yale University, alleging that it also discriminated against Asian American and white applicants in admissions.
“The Supreme Court is going to change the law on affirmative action," Chemerinsky said. “It’s inevitable with the shift of the court.”
Brown, at Indiana University, said using the Harvard case to overturn affirmative action has another advantage for the plaintiffs and the Supreme Court.
In a landmark 1978 University of California case, the Supreme Court banned the use of racial quotas to achieve diversity in college admissions but upheld affirmative action and the use of race as a factor in the decision-making. At the time, the Supreme Court held up Harvard’s admissions process, which didn’t rely quotas but took a more holistic approach, as a model for other colleges to follow.
“There would be a certain poetic justice in using Harvard’s affirmative case to strike down affirmative action,” Brown said.
Harvard set the standard for race-conscious admissions, he said, and this Supreme Court could determine “that standard is no long applicable.”
Deirdre Fernandes can be reached at email@example.com. Follow her on Twitter @fernandesglobe.