“The Harvard challenge really strikes at the fountainhead of modern affirmative action jurisprudence,” Richard Kahlenberg, a senior fellow at the Century Foundation told the Christian Science Monitor.
For opponents of affirmative action, Harvard is something of a holy grail. It’s not just a fancy college in Boston, but the architect of an alternative to racial quotas — that has allowed race to be used in admissions for nearly 40 years.
Until the 1920s, Harvard admitted students based on results of an entrance exam, but expanded criteria to include ambiguous qualities such as character and personality. This policy, which persisted through the 1950s, was used to keep out Jews and immigrants.
Eventually, the university evolved, developing what, in 1978, the Supreme Court called “the Harvard plan.” Harvard wasn’t a party in the Court’s first affirmative-action case, Regents of the University of California v. Bakke, but filed a brief outlining its admission policy, which allowed for consideration of race among many other factors — including prospective students’ musical talent, socioeconomic status and hometown — to achieve diversity.
“In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year,” Justice Lewis F. Powell wrote for the majority. “This kind of program treats each applicant as an individual in the admissions process.”
But even in the decades after the Court supported Harvard’s approach, some say the university still struggles with diversity. Some students say the school needs affirmative action.
“If you are not white, not male, or not a Protestant member of Harvard’s campus today, you are a direct or indirect beneficiary of affirmative action, and you should be proud,” wrote Harvard student Dennis O. Ojogho for the Harvard Crimson earlier this year.
Plaintiffs in a case filed in federal court on Monday don’t agree. They claim that, by considering race as one factor among many, Harvard is discriminating in much the same way they once discriminated against Jews.
Filed in federal court in Boston, the Harvard suit claims the university has had roughly the same proportion of Asians to other ethnic groups for years despite changes in application rates and qualifications. “Only using race or ethnicity as a dominant factor in admissions decisions could, for example, account for the remarkably low admission rate for high-achieving Asian-American applicants,” the suit argues. “Harvard’s admissions decisions simply are not explainable on grounds other than race.”
The school disagreed.
“Then and now, the college considers each applicant through an individualized, holistic review having the goal of creating a vibrant academic community that exposes students to a wide-range of differences: background, ideas, experiences, talents and aspirations,” Robert Iuliano, Harvard’s general counsel, said in a statement reported by Christian Science Monitor.
The case against against Harvard — and another filed Monday against the University of North Carolina — were filed by Students for Fair Admissions on behalf of anonymous applicants rejected by both schools. The group is led by a man intent on ending race-based laws.
Investment broker Edward Blum was the driving force behind Shelby County v. Holder, the 2013 Supreme Court case that gutted the Voting Rights Act, and an affirmative action case against the University of Texas.
He’s ready for more.
“Given what is occurring at Harvard and at other schools, the proper response is the outright prohibition of racial preferences in university admissions — period,” the suit against Harvard argues.
Both complaints argue the Court should overrule its past affirmative action cases because consideration of race failed to end racial bias in admissions. Further, they argue that diversity can be achieved using race-neutral means. One example they cite is a percentage plan like the one used in Texas which guarantees admission to any public university to the top 10 percent of any high school class in the state. And the Harvard complaint claims the university can achieve a more diverse student body by getting rid of a policy that favors children of alumni which affords a “competitive advantage to mainly white, wealthy applicants, while undermining the chances for admission of socioeconomically disadvantaged and minority applicants.”
“The Harvard and UNC lawsuits clearly were prepared to build a case in lower courts so that, perhaps two or three years from now, the lawsuits could reach the Supreme Court for an ultimate test of affirmative action, at least in college admissions,” wrote SCOTUSBlog’s Lyle Denniston.
The cases are Students For Fair Admissions Inc. v. President and Fellows of Harvard College and Students For Fair Admissions Inc. v. University of North Carolina.