By Natalie Dugan, CLS ’20
A civil-rights law suit filed against Harvard in 2014 went to trial in a federal district court in Boston last week. The plaintiff, a group called Student for Fair Admissions, alleges that Harvard’s undergraduate program discriminates against Asian-Americans.[1]A report from Harvard’s own Office of Institutional Research reported that Asian-Americans were accepted at a lower rate than whites, despite scoring higher on test scores, and being rated higher by admissions officers in extracurriculars.[2]While the plaintiff believes this trend is explained by discrimination, Harvard argues that it’s not.[3]Moreover, Harvard, and several other elite universities, contend that if the admissions process must proceed in a race-neutral fashion, diverse environments will not be possible.[4]
The Supreme Court has tackled the issue of affirmative action in elite universities a number of times, and set the relevant standard in two landmark cases: Grutter v. Bollinger and Gratz v. Bollinger. In the former case, a white student alleged that he was rejected from the University of Michigan’s Law program due to his race.[5]The Court held that a narrowly tailored affirmative action system is Constitutional if it relates to what the Court saw as a legitimate and compelling interest in increasing the diversity of the student body.[6]Moreover, the Court explained that a narrowly tailored system is one that does not plainly rely on racial quotas, but is rather a holistic evaluation of the many factors that might impact an application (personal statement, extracurriculars, grades, etc).[7]In Gratz v. Bollinger, the Court similarly held that formulaic affirmative action schemes violate equal protection, and that individualized consideration must be afforded to all candidates.[8]
In opening statements last week, plaintiff’s attorney Adam Mortara argued that Asian Americans outscore white applicants in every single category, except for the “subjective personal rating”.[9]And in this way, the plaintiff aims to distinguish Harvard’s practices from that of Supreme Court sanctioned affirmative action, and classify it instead as racial discrimination.[10]Harvard, however, emphasized that race never plays a negative role in the admissions process, but can only be positive.[11]Notably, on the plaintiff’s side is attorney Edward Blum, a conservative lawyer with a long track record of challenging affirmative action.[12]Some believe that this case is poised for the Supreme Court – and with Judge Kavanaugh now presiding, it’s possible the standard for affirmative action will change significantly.[13]
[1]Jeannie Suk Gersen, Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case, The New Yorker (Oct. 11, 2018), https://www.newyorker.com/news/our-columnists/anti-asian-bias-not-affirmative-action-is-on-trial-in-the-harvard-case.
[2]Id.
[3]Id.
[4]Id.
[5]Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2003).
[6]Id.
[7]Id.
[8]Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411 (2003).
[9]Adam Harris, What the Harvard Trial Is Really About, The Atlantic(Oct. 15, 2018), https://www.theatlantic.com/education/archive/2018/10/harvard-really-about-affirmative-action/573064/.
[10]Jeannie Suk Gersen, Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case, The New Yorker (Oct. 11, 2018), https://www.newyorker.com/news/our-columnists/anti-asian-bias-not-affirmative-action-is-on-trial-in-the-harvard-case.
[11]Adam Harris, What the Harvard Trial Is Really About, The Atlantic(Oct. 15, 2018), https://www.theatlantic.com/education/archive/2018/10/harvard-really-about-affirmative-action/573064/.
[12]Jeannie Suk Gersen, Anti-Asian Bias, Not Affirmative Action, Is on Trial in the Harvard Case, The New Yorker (Oct. 11, 2018), https://www.newyorker.com/news/our-columnists/anti-asian-bias-not-affirmative-action-is-on-trial-in-the-harvard-case.
[13]Adam Harris, The Harvard Case Is About the Future of Affirmative Action, The Atlantic(Oct. 15, 2018), https://www.theatlantic.com/education/archive/2018/10/harvards-affirmative-action-trial-gets-underway/572989/.
