Julia Levitan, CLS ’22
On November 12, 2020, the First Circuit Court of Appeals ruled in favor of Harvard University in a high-profile affirmative action case.[1] The plaintiff, Students for Fair Admissions (SFFA), has already announced its intention to bring its suit against Harvard to the Supreme Court.[2] If the Supreme Court does choose to hear the Harvard case, or any of the other SFFA lawsuits currently in the lower courts, the increasingly conservative Court could revisit and possibly upend the established affirmative action jurisprudence that dates back to the 1970s.[3] Under the current standard, a school’s admissions process can consider race as one factor in a multi-factor, holistic evaluation of applications in the interest of achieving the educational benefits of a diverse student body.[4] A school cannot engage in “racial balancing” or use quotas in admissions.[5]
The case began in 2014, when SFFA, a group founded by “anti-affirmative-action activist” Edward Blum, filed suit against Harvard College, alleging that the school’s undergraduate admissions process discriminates against Asian American applicants in violation of Title VI of the Civil Rights Act of 1964.[6] The plaintiffs argued that the college engages in impermissible racial balancing and relies too heavily on race as the dominant factor in the school’s admissions program.[7] Harvard defended against these claims by arguing that its admissions process involves a “holistic” review that does not overemphasize or too heavily weigh the race of the applicant.[8] The first victory for Harvard came in 2019, when a district court judge found that the college’s admission program survives strict scrutiny, that is, that the school’s use of race is “narrowly tailored to further a compelling interest.”[9] The First Circuit affirmed the district court’s decision, holding that Harvard’s admission process does not violate Title VI.
But the First Circuit decision is unlikely to be the end of the road for the Harvard case, or for SFFA’s litigation battles against affirmative action policies. The Harvard case is one of many lawsuits the group is pursuing challenging affirmative action policies at institutions of higher education.[10]
[1] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 19-2005, 2020 WL 6604313 (1st Cir. Nov. 12, 2020).
[2] Benjamin L. Fu & Dohyun Kim, What to Expect Next in the Harvard Admissions Suit, The Harvard Crimson (Oct. 13, 2020), https://www.thecrimson.com/article/2020/10/13/harvard-sffa-next-steps.
[3] See Fisher v. University of Texas at Austin, 578 U.S. __ (2016) (slip op), Gratz v. Bollinger, 539 U.S. 244 (2003), Grutter v. Bollinger, 539 U.S. 306 (2003), Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
[4] Fisher, 136 U.S. at 13.
[5] Id. at 7.
[6] Students for Fair Admissions, 2020 WL 6604313, at *1.
[7] Id. at *22-25.
[8] Id.
[9] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126, 191 (D. Mass. 2019), aff’d sub nom. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 19-2005, 2020 WL 6604313 (1st Cir. Nov. 12, 2020).
[10] See Anemona Hartocollis, Affirmative Action Cases May Reach Supreme Court Even Without Trump, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/11/09/us/affirmative-action-north-carolina.html.
