But the plaintiff, Students for Fair Admissions, which lost on all counts in the judge’s ruling this week, pledged an appeal to the U.S. Court of Appeals for the 1st Circuit. Eventually, the case could reach the Supreme Court. That would provide opponents of affirmative action another potential opening to overturn decades of precedent from the high court allowing race-conscious admissions, in a limited way, without racial quotas.
Most observers read Tuesday’s decision from U.S. District Judge Allison D. Burroughs in Boston as an endorsement of an admissions system used at many selective colleges. That system, known as “holistic review,” takes race into account as one among many factors in a prospective student’s background.
“It appears to be a slam dunk for Harvard,” Peter McDonough, vice president and general counsel for the American Council on Education, said after the ruling. “It is close to a slam dunk for colleges and universities across the country.” The council, a prominent advocate for higher education, had joined with other groups in a friend-of-the-court brief supporting the Harvard model.
McDonough acknowledged that a potential Supreme Court showdown looms. “But for today the story line is the unambiguous nature of the judge’s ruling,” he said. “The judge has taken 130 pages to forcefully say ‘Harvard wins.’ ”
Critics of race-conscious admissions lamented the ruling. They accused Burroughs of shrugging off questions the suit raised about why Asian American applicants tended to receive lower ratings from Harvard admission officers for their personal qualities.
“Today marks a dark day for millions of Asian American children nationwide,” Yukong Zhao, president of the Asian American Coalition for Education, said in a statement. “Our nation has witnessed another immoral attempt by America’s ruling class to continue their institutionalized discrimination against Asian American children and treat them as second-class citizens with regard to educational opportunities.”
Another group applauded the decision as a “critical victory” for Asian American students. “While we must do more to ensure that Asian American students do not face unequal opportunities through harassment, stereotyping and language barriers,” said Aarti Kohli, executive director of Advancing Justice-Asian Law Caucus, “the use of race-conscious admissions policies — which safeguard against discrimination — is an important step.”
Roger Clegg, general counsel of the Center for Equal Opportunity, which opposes what he described as racial preferences, said the ruling was not a surprise. “I don’t think it’s going to change the trajectory of what I think everybody expects to be a case that ends up before the Supreme Court,” he said. Clegg pointed to survey data from the Pew Research Center showing most Americans don’t support the use of race in admissions.
Affirmative action is not a universal practice in admissions. Several states, including California, ban race-conscious admissions in public universities. But a substantial number of competitive private and public schools acknowledge taking race into account.
Students for Fair Admissions, which says it represents rejected Asian American applicants, filed its suit in November 2014, alleging violations of civil rights law and of Supreme Court mandates. The group claimed that Harvard intentionally discriminated against Asian Americans, that it sought to “balance” its admitted class to meet preconceived targets for racial and ethnic groups, that it leaned too heavily on race as a factor in admission deliberations, and that it failed to give adequate consideration to race-neutral alternatives.
Burroughs rejected all the claims. The judge wrote that testimony from Harvard admission officers denying discrimination was “consistent, unambiguous and convincing.” She also noted that the plaintiff chose not to put an individual face onto its case. There was no individual analogue to Bakke, Grutter, Gratz or Fisher — all surnames of plaintiffs from previous eras who became part of the Supreme Court’s record on affirmative action.
Students for Fair Admissions, Burroughs wrote, “did not present a single Asian American applicant who was overtly discriminated against or who was better qualified than an admitted white applicant when considering the full range of factors that Harvard values in its admissions process.”
The judge wrote that Harvard’s record was not perfect. In a footnote, she wrote that “some slight implicit biases among some admission officers” may have affected the personal ratings of certain applicants. “While regrettable,” she wrote, such biases “cannot be completely eliminated in a process that must rely on judgments about individuals.”
She also admonished Harvard to follow the Supreme Court’s dictate from its most recent ruling on affirmative action, in 2016: that universities must continue to use data to scrutinize the fairness of their admissions programs and “assess whether changing demographics have undermined the need for a race-conscious policy.”
But Burroughs generally accepted the premise behind Harvard’s efforts: that consideration of race was necessary for the university to maintain a diverse campus. The judge cited the experience of Ruth Simmons, former president of Brown University and current president of Prairie View A&M University, as “perhaps the most cogent and compelling testimony presented at this trial.” Born in a sharecropper’s shack in Texas, Simmons became a pioneering African American leader in higher education.
Burroughs quoted Simmons at length in the conclusion of her ruling.
“It’s very hard for me to overstate my conviction about the benefits that flow to all of these areas from a diverse undergraduate student body,” Simmons testified. “I know something about the lack of diversity in one’s education. … My father was a janitor, my mother was a maid. They had been sharecroppers, they had few opportunities. I lived through that. I remember it. So to me, the benefits that flow to students is they get a better education, a deeper education, a truer education to deal with what they’re going to have to deal with in life.”
The judge then added: “For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions.”