Harvard won, but battle over race-based admissions isn’t finished

A federal judge decided this week that Harvard does not discriminate against Asian American applicants. But the Students for Fair Admissions (SFFA) v. Harvard case – expected to eventually be appealed up to the Supreme Court – is just one arrow in the quiver of affirmative action opponents. 

More cases are in the works, from a federal lawsuit against the University of North Carolina to a state suit against the University of Texas, all aiming at race-based admissions. “The ultimate goal is to eliminate the use of race and ethnicity in the admissions process,” Edward Blum, SFFA’s president, told the Monitor during a phone interview before the Harvard decision. “We believe a student’s race should not help that student or harm that student in his or her application to any college in the country,” said Mr. Blum, who is involved in the other two suits as well. 

Interpretations of race and its role within higher education are still very much in flux. It’s not just court cases and laws that shape these views, but also a larger backdrop of the nation’s attempt to come to grips with a long history of race and inequality. 

Affirmative action is a major hot button in that context, but on a practical level, it’s not a focal point for a large swath of American colleges.

“The number of universities that use race in admissions has always been a small fraction of the higher education landscape, but it is dwindling over the past 20 years,” says Matthew Johnson, an assistant professor of history at Texas Tech University.

Judge Allison Burroughs ruled strongly in favor of Harvard, but she did not espouse a view that race-conscious admissions policies will be justifiable forever, nor did she let the college off the hook for imperfections in its admissions system. She recommended implicit bias training and continued monitoring of admissions data. 

Quoting from the Supreme Court in its 2016 Fisher II decision on behalf of the University of Texas, Austin, she wrote that the university must “scrutinize the fairness of its admissions program ... and engage in constant deliberation and continued reflection regarding its admissions policies.” 

It’s not just universities, but parents and students themselves who should be engaging in more reflection, suggests Ethan, an Asian American freshman at Harvard who asked that his last name not be used. “The most important thing regarding this discussion is that where you go is not going to decide how successful you’re going to be,” he says, noting a cultural tendency within the Asian American community to focus perhaps too heavily on the elite institutions. “The university is a part of your identity, but if it’s such a determining factor of identity, I think that’s not a healthy mindset,” he says. 

Sitting outside the Harvard Science Center on Wednesday morning, Ethan adds that if the case does go to the Supreme Court, “Harvard needs to argue convincingly that, yes, diversity is something that is really key to our university and our environment.” But he also understands the frustrations of Asian American prospective college students, he says, recognizing that he’s speaking from a position of privilege being at the university.

The “race neutral” option

With the pressure still on, many selective colleges and universities have been steering themselves toward “race neutral” policies to dodge the volleys of affirmative action opponents, even before any potential ban from the Supreme Court materializes. Now, though, even race-neutral strategies – such as relying more on socioeconomic factors to diversify an incoming class – are also becoming targets of scrutiny, if not outright attack.

Particularly in states with laws against affirmative action in admissions, universities often create race-neutral systems to diversify their student bodies. The courts so far haven’t precisely defined what counts as race neutral, Professor Johnson says, so currently “there are lots of ways you can kind of capture race without really capturing race on the surface.”

In California, where voters opted to ban race-conscious admissions in 1996 via Proposition 209, a lawsuit is under way with the ultimate goal of making sure the University of California isn’t “cheating” by surreptitiously “using race consciously to bring about racial outcomes,” says Richard Sander, a UCLA economist and law professor, whose data methodologies and arguments criticizing affirmative action have long been controversial.  

Last November, he joined forces with the Asian American Community Services Center in filing the public records lawsuit against the University of California regents.

Professor Sander’s contested “mismatch” theory argues that when race is no longer used in admissions, a higher caliber of students among underrepresented minorities are attracted to apply, and when they don’t feel stigmatized, they remain and graduate at higher rates.

He studied Prop 209 with previous data, and wants to update his research because in 2007, UCLA shifted away from a demonstrably race-neutral admissions approach to a “holistic” process, which he and other critics claim is less transparent and has reintroduced race into the calculation. 

If this leads to a discrimination lawsuit against the UC system, it could launch a sort of Stage II of the anti-affirmative action mission. That’s because even if the Supreme Court eventually bans the use of race in admissions, “some court has to come up with how you ensure universities are obeying the law,” Professor Sander says. 

Spokeswoman Claire Doan said in an email that responding to Professor Sander’s records request “would impose an extensive burden on University resources and is not required by state law,” and noted UC’s commitment to “fairness and transparency” in admissions.

But advocates for racial equity are concerned. For California to lose the race-neutral approach to promoting diversity would mean “a decline again in underrepresented minority students in the UC system,” Professor Johnson says. 

Defending the status quo

Many universities and even corporations would be likely to come together to defend race-conscious admissions if the issue winds up back on the Supreme Court docket, says Professor Johnson from Texas Tech.

Such supporters would have plenty to draw from in Judge Burroughs’ ruling in the SFFA v. Harvard case in U.S. District Court in Boston. The decision, dated Sept. 30, emphasizes the need for consideration of race in admissions as a temporary measure to get society to a point of equality that nullifies such a need. 

“The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents,” she wrote. “They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet.” Until then, she noted, policies like Harvard’s, which use race in a narrowly tailored way, “will have an important place in society ...” 

The University of Texas, whose use of race in admissions was approved by the Supreme Court in 2016, is still having to defend its policies against Mr. Blum. His challenge this spring in state court alleging that UT admissions practices violate the Texas constitution is a sign of his “recalcitrance and hostility,”  Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said in a May 20 statement, vowing to push back against his “all-out assault against racial diversity efforts at our nation’s colleges and universities.” 

Yet despite such rallying cries to defend the schools that do consider race in admissions, many selective colleges have voluntarily put down that tool. It’s common in higher education circles now to discuss much broader definitions of diversity – touting factors such as geographic and international diversity – and to substitute economic backgrounds for racial factors, even in states where race-conscious admissions is still allowed.

“I haven’t seen any race-neutral policy that still doesn’t disadvantage underrepresented students of color to a greater degree than other students,” says Wil Del Pilar, vice president of higher education policy and practice at The Education Trust. 

Judge Burroughs essentially agreed, saying any race-neutral alternatives proposed by SFFA, in her analysis, would not suffice to achieve similar racial diversity to what Harvard currently values.

If opponents of affirmative action were really concerned about fairness, they should also be outraged about things like legacy admissions and athletic recruiting in certain sports, which tend to favor white and wealthy students, Mr. Del Pilar says. 

It hasn’t been Mr. Blum's primary mission to remove legacy admissions. But he agrees to some extent that schools like Harvard would be better served by dropping a range of preferences for certain applicants, such as the sons and daughters of employees and alumni, and they would then “naturally have a unique freshman class,” he says. 

SFFA v. Harvard is the first affirmative action case Professor Johnson has seen where legacy preferences haven’t been ignored. During the trial, reducing those preferences came up as one possible way to help diversify without using race.

Given the public consternation over this year’s “Varsity Blues” scandal and the awareness it raised, it could be to the advantage of affirmative action opponents to signal that message more clearly to the public, Professor Johnson says. It would show they are “perhaps interested in all of the preferences that the rich get as well, and they’re trying to take them both on at the same time.”

Staff writer Dwight Weingarten contributed reporting from Cambridge, Massachusetts.