As you may have heard, Harvard College is defending its admissions process in federal court this week. You are sure to hear sporadic soundbites about this headline-grabbing trial as it progresses. So, I thought it might be helpful if I gave my clients some context to better understand all the noise.
Who’s suing who?
A national group called Students for Fair Admissions (SFFA) is suing Harvard. SFFA has thousands of members, some of which are Asian-American students who applied to Harvard and were denied.
What’s the issue?
You will hear many describe this case as the Harvard affirmative-action case, and if SFFA wins it could be the end to affirmative action in college admissions. Surprise. This characterization is not entirely accurate. For many years, the Supreme Court has deemed race-based traditional affirmative action involving quotas and racial balancing to be “patently unconstitutional."
WARNING: Put on your lawyer hat for one second…ok…ready for a little lesson in constitutional law? In a long line of cases beginning in the Regents of Univ. Calif. vs. Bakke in 1978 and ending in Fisher vs. Univ. of Texas at Austin in 2016, the Supreme Court has concluded that a university that accepts federal dollars is prohibited from considering race unless the university’s admission process can withstand “strict scrutiny.” This standard requires that the university’s purpose be “constitutionally permissible and substantial” AND the use of race is “necessary” to accomplish that purpose.
Citing the undeniable benefits of having a diverse student body, the Court has concluded that diversity is a constitutional purpose. Pause. Read that again. Diversity is an acceptable purpose for utilizing race in the admissions process. But (and this is a significant but) the use of race for the sake of diversity must be necessary, which means the university has the burden to demonstrate that “race-neutral alternatives that are both available and workable do not suffice.”
In the current Harvard case, SFFA alleges that Harvard’s “purpose” was not to create diversity but rather to intentionally exclude qualified Asian-American applicants for no reason other than their race. If they lose on that issue, SFFA argues that Harvard has not in good faith considered other race-neutral alternatives that might achieve its desired diversity, such as socio-economic factors and increased financial aid.
What’s going to happen?
The trial judge will likely rule in the first quarter of 2019. The losing party will undoubtedly appeal until the case is sitting at the Supreme Court’s doorsteps, a process that could take us into 2020. If the Court decides to hear the case, it will be a clear signal that they believe an important constitutional issue is at stake, most likely whether or not Harvard’s use of race in the admissions process meets the strict scrutiny test. The 2016 Fisher case was decided with only seven justices voting (4-3 in favor of the University of Texas). Chief Justice Roberts and Justice Thomas joined a dissenting opinion written by Justice Alito that is a roadmap of how this case is likely to be reviewed. With the recent addition of Justices Gorsuch and Kavanaugh, it is conceivable that Harvard’s use of race in the name of diversity might not win the day, which really means the smart folks at Harvard and other similar institutions will adjust their processes in such a way that racial diversity continues to be achieved.
What does this mean for you?
Honestly, not a lot. Do you remember the adage “you can’t control what you can’t control”? Well, you can’t control any of this. What your children can control are the classes they take, how hard they work in those classes, what they do with their spare time, how they approach standardized testing, etc. No matter your race or ethnicity, work hard to be an applicant that schools can’t turn away. My formula for success is Supreme Court proof: start early, have a plan, be focused, and work hard.