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. A Monthly Review of Recently Issued Appellate Opinions Pick up trial tips and strategies! Presented by the Appellate Practice Committee of the Palm Beach County Bar Association first Thursday of every month. 12:00 - 1:00 p.m. Fourth District Court of Appeal, 110 S. Tamarind Avenue, West Palm Beach BROWN BAG LUNCH Issues to be covered include, but are not limited to: family law, criminal procedure, civil procedure, landlord-tenant, torts, attorney's fees, legal malpractice, mortgage foreclosure, discovery, constitutional law, workers’ compensation, arbitration, probate, evidentiary, and jurisdictional. 1.0 CLER; 1.0 Certification credit in Civil Trial; Criminal Appellate Law; Appellate Practice register below or online at palmbeachbar.org Cost: $10.00 for Members; $20.00 for Non-Members Register me for: ____ December 5; ____ January 2 ____February 6; ____ March 5; ____ April 2; ____ May 7 Name: __________________________________ Email: ____________________________ Earn CLE in Palm Beach County while being taught by Palm Beach County practitioners ! PALMBEACHBAR.ORG 13