PBCBA BAR BULLETINS pbcba_bulletin_Dec. 2019 | Page 13

The court concluded that none of the
proposed alternatives would allow Harvard
to “meet its diversity goals while not unduly
compromising on its other legitimate
institutional objectives.”
Harvard does not intentionally discriminate
against Asian Americans
SFFA did not claim that Harvard excludes
Asian Americans. In fact, the evidence
showed that Asian Americans are
admitted at virtually the same rate as
white applicants. Rather, SFFA argued that,
based solely on the quantifiable aspects of
admissions, Asian Americans should be
admitted at an even higher rate and that, if
personal ratings 8 were not depressed, there
would be more Asian Americans admitted.
The court found that while there was a
disparity in the personal ratings between
Asian American and other races, it was
“small” and “reflects neither intentional
discrimination against Asian American
applicants nor a process that was
insufficiently tailored to avoid the potential
for unintended discrimination.”
Harvard’s admissions program is “not
perfect”
While Harvard’s admissions program
survives strict scrutiny, the court found
that it is “not perfect” and would benefit
from conducting implicit bias trainings
for admissions officers, maintaining
clear guidelines on the use of race in the
admissions process, and monitoring and
making admissions officers aware of
any significant race-related statistical
disparities in the rating process. Despite
this, the court held that it “will not
dismantle a very fine admissions program…
solely because it could do better.”
Since
this
lawsuit,
Harvard
has
implemented changes to its admissions
program. In 2018, Harvard’s admissions
reading procedures were amended for
the class of 2023 to explicitly instruct
admissions officers that they “should not
take an applicant’s race or ethnicity into
account in making any of the ratings other
than the Overall rating” and, that for the
overall rating, “[t]he consideration of race
or ethnicity may be considered only as
one factor among many.” Also, the reading
procedures for personal ratings explicitly
state that “an applicant’s race or ethnicity
should not be considered in assigning
the personal rating” and admissions
officers are asked to consider “qualities
of character” such as “courage in the face
of seemingly insurmountable obstacles,”
“leadership,” “maturity,” “genuineness,”
“selflessness,”
humility,”
“resiliency,”
“judgment,” “citizenship,” and “spirit and
camaraderie with peers.”
On October 11, 2019, SFFA filed its notice of
appeal of Judge Burrough’s ruling with the
U.S. First Circuit Court of Appeals. Harvard
plans to vigorously defend the Court’s
ruling.
1
Students for Fair Admissions, Inc. v. President &
Fellows of Harvard Coll., 2019 WL 4786210 (D. Mass.
Sept. 30, 2019)
2 Counts IV and VI were dismissed following the court’s
order granting Harvard’s motion for judgment on the
pleadings entered June 2, 2017.
3 Id. at *2 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873 (1954).
4 Id. at *46-50; See also Regents of Univ. of California v.
Bakke , 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978);
Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156
L.Ed.2d 304 (2003).
5 Fisher v. Univ. of Texas at Austin, 136 S.Ct. 2198, 2211
(2016) (“Fisher II).
6 SFFA , 2019 WL 4786210 at *51 (quoting Fisher II, 136
S.Ct. at 2208; Grutter, 539 U.S. at 329-30, 123 S.Ct. 2325;
Bakke , 438 U.S. at 307, 98 S.Ct. 2733)).
7 Id. at *52 (quoting Grutter, 539 U.S. at 334; Bakke, 438
U.S. at 317).
8 Personal ratings reflect the admission officer’s
subjective assessment of what kind of contribution the
applicant would make to the Harvard community based
on their personal qualities.
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