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 PBCBA BAR BULLETIN 12 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)