The “Harvard” Suit

Students for Fair Admissions (“SFFA”) vs. President and Fellows of Harvard College (“Harvard”)

SFFA filed suit against Harvard in November 2014.  Its complaint alleged that Harvard violated Title VI of the 1964 Civil Rights Act in four ways:  (1) By discriminating against Asian-American applicants, (2) By engaging in “racial balancing” in its admissions process, (3) By using race as more than a ‘plus’ factor and using it to fill more than a small number of seats in its freshman class, and (4) By failing to use race-neutral alternatives to achieve its diversity objectives.

Two things in particular make the Harvard case different from any of the affirmative action cases that have come before the Supreme Court.  First, all prior cases have had white plaintiffs and have focused on whether discrimination against whites is permissible.  The Supreme Court has held that discrimination against a majority group, to achieve better representation of an historically disadvantaged minority group, can be “benign” rather than invidious, because in effect those in power are choosing to disadvantage their own racial group in the interest of diversity.  In the Harvard case, the plaintiffs highlighted the discrimination against Asian-Americans, who not only are not a “majority” or politically potent group, but who also have historically experienced considerable invidious discrimination.  The plaintiffs explicitly drew an analogy between Harvard’s “ceiling” on Asian-American admissions and its acknowledged quota on Jewish admissions in the 1920s and 1930s.

Second, the Harvard case had dived far more deeply into admissions data than any earlier case.  In Bakke, the University of California acknowledged its use of a quota; in Gratz, the University of Michigan acknowledged that it awarded a set number of “points” to minority applicants; in Grutter and Fisher, the plaintiffs used relatively simple analyses to show the existence of racial preferences.  In Harvard, however, the plaintiffs sought (and obtained), through discovery, data on many dozens of characteristics of individual applicants, and both the plaintiffs and defendants used complex statistical models to try to measure the effect of race and other factors in Harvard’s admissions process.  Each side had a prominent economist acting as an expert witness, and discussion of the experts’ reports and testimony occupied the bulk of the lower court opinion.  This is significant because many of the Supreme Court’s tests for the permissible use of race in admissions turn on empirical concepts, such as whether race is ever “the defining element” in determining a student’s admission (not permitted), whether the university’s calibration of admissions amounts to de facto quotas or racial balancing, even if those are not admitted (not permitted), and so on.

Both the District Court and the First Circuit panel ruled in Harvard’s favor.  But there are two reasons to think the Supreme Court may grant certiorari and hear the case.  First are the very novel aspects of the case described above.  Second, decisions in affirmative action cases have tended to fall closely along partisan lines.  Both the district judge in Harvard, and a majority of the First Circuit panel, were appointed by Democratic presidents.  In contrast, six members of the Supreme Court are Republican appointees, and the three of these six who heard the Fisher cases wrote or joined dissenting opinions calling for more restrictive rules in the sphere of higher education preferences.