PBCBA BAR BULLETINS pbcba_bulletin_Dec. 2019 | Page 12

DIVERSITY CORNER
HARVARD’S RACE-CONSCIOUS ADMISSIONS
PROGRAM PASSES CONSTITUTIONAL MUSTER
ANDREA G. AMIGO
In a detailed 130-page order, Judge Allison
D. Burroughs ruled that Harvard College’s
undergraduate admissions program does
not discriminate against Asian American
applicants. 1 of a narrowly tailored plan” because race
is used in a “flexible, nonmechanical way”
and is considered as a “plus” factor in the
context of individualized consideration of
each and every applicant.
The plaintiffs, Students for Fair Admissions
(“SFFA”), filed a six-count complaint alleging
Harvard violated Title VI by intentionally
discriminating against Asian Americans
(Count I), using racial balancing (Count II),
failing to use race merely as a “plus” factor
in admissions decisions (Count III), failing
to use race merely to fill the last “few places”
in the incoming freshman class (Count IV),
using race where there are available and
workable race-neutral alternatives (Count
V), and using race as a factor in admissions
(Count VI). 2 The court also determined that Harvard’s
admissions program did not unduly burden
Asian American applicants. In terms of
burden, the court found that eliminating the
consideration of race would significantly
disadvantage at least some Asian
American applicants as evidenced by the
testimony of the amici at trial who viewed
their race or ethnicity as a critical aspect of
their life experiences and applications to
Harvard. The court concluded that “while
the admissions process may be imperfect…
[it] is narrowly tailored to achieve a diverse
class and the benefits that flow therefrom.”
Harvard acknowledged that its undergrad-
uate admissions process considers race as
one factor among many, but claimed that
its use of race is consistent with applicable
law.
Judge Burroughs recognized that “diversity
of all sorts, including racial diversity, is
an important aspect of education.” 3 Her
detailed order analyzes the testimony
and statistical evidence presented at trial
and explains why she believes Harvard’s
admissions process passes constitutional
muster.
Harvard’s race-conscious admissions program
survives strict scrutiny
The court closely examined whether
Harvard’s use of race in its admissions
program survives strict scrutiny, i.e.,
whether the classifications used by
Harvard in its admissions program were
“narrowly tailored to further a compelling
interest.” 4 The court found that Harvard’s
interest in student body diversity is
“substantial and compelling” and that its
goals were not “elusory or amorphous”, but
instead, “sufficiently measurable to permit
judicial scrutiny of the policies adopted to
reach them.” 5
The court also found that Harvard’s
admissions program “bears the hallmarks
Harvard did not engage in racial balancing
To maintain a permissible race-conscious
admissions policy, a university may
not impose a “fixed quota” or “otherwise
assure within its student body some
specified percentage of a particular group
merely because of its race or ethnic
origin as such a practice would amount
to outright racial balancing, which is
patently unconstitutional under the Equal
Protection Clause and therefore prohibited
by Title VI.” 6
The court found that Harvard does not
“employ a race-based quota, set aside seats
for minority students, or define diversity as
some specified percentage of a particular
group merely because of its race or ethnic
origin.” The court rejected SFFA’s argument
that Harvard’s use of one-page documents
which showed the racial composition of
applicants is the equivalent of a quota
or racial balancing. The court, citing to
Supreme Court precedent, found that
“some attention to numbers, without more,
does not transform a flexible admissions
system into a rigid quota.”
Harvard uses race as a “plus” factor
The court found that Harvard uses race as
a factor that can act as a “plus” or a “tip” in
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making admissions decisions and that its
admissions program is “flexible enough to
consider all pertinent elements of diversity
in light of the particular qualifications of
each applicant, and to place them on the
same footing for consideration, although
not necessarily according them the
same weight.” 7 The court further noted
that “[a]lthough racial identity may be
considered by admissions officers when
they are assigning an applicant’s overall
rating…race has no specified value in the
admissions process and is never viewed
as a negative attribute.” The court also
found that the magnitude of plus factors
that Harvard gives for race is “modest” and
the magnitude of race-based tips is not
disproportionate to the magnitude of other
tips applicants may receive.
Race-neutral alternatives are not sufficient
The court accepted Harvard’s argument that
it had adequately studied and exhausted
race-neutral ways to maintain diversity
in its admissions process. The judge
found that race-neutral alternatives, such
as eliminating early action, eliminating
preferences for ALDC students (athletes,
legacies (or children of alumni), those on
the dean’s and director’s lists, and children
of faculty or staff), increasing outreach
and community partnerships, and offering
more financial aid, are workable, but have
no meaningful impact on racial diversity.
The court also examined other alternatives
like admitting only students who rank at
the top of their high school class after their
junior year or admitting the top student
from each zip code, but found that these
alternatives are not workable for Harvard
because such programs would vastly over
enroll its class.
SFFA’s expert proposed a geographic
based quota system that was seemingly
designed to achieve racial diversity based
on socioeconomics rather than attention
to race. The court found this approach
had logistical challenges and “some of
the earmarks of impermissible racial
balancing, albeit without an explicit,
articulated reliance on race.”
(Continued on next page)