Summary: The Supreme Court will have to revisit the issue of affirmative action in SFFA v. Harvard and may drastically change the legal framework in regards to college admissions going forward.
Background
Students for Fair Admissions (SFFA) sued Harvard University in November of 2014 alleging discriminatory admission standards. SFFA, representing a coalition of Chinese-, Indian-, Korean-, and Pakistani-American organizations across the U.S., contests Harvard’s claim that their holistic admissions process weights race fairly and argues. The coalition claims Harvard’s admissions process violates the Equal Protection Clause of the Fourteenth Amendment. SFFA claims that legacy and athlete admissions cannot explain the disparity in admission gaps using statistical analyses of Harvard’s admissions data conducted by Peter Arcidiacono, a labor economist and professor at Duke University. Using the same data, David Card, professor of economics at University of California, Berkeley, reached very different conclusions than Arcidiacono’s. Card’s study has been endorsed by former Federal Reserve Chair Janet Yellen. Edward Blum is a supporter of SFFA. Blum was responsible for Fisher v. University of Texas and Shelby County v. Holder, the former as a failed attempt to overturn affirmative action and the latter a successful curtailment of the Voting Rights Act.
SFFA’s argument is fourfold. First, Harvard intentionally discriminates against Asian-American applicants, in Harvard’s admissions policy has a disproportionately negative effect on Asian-Americans than similarly-situated white applicants that cannot be explained without discrimination. Second, Harvard engages in racial balancing in every class so as to have the same racial balance year after year. Third, Harvard is not using race to achieve a critical mass for diversity, but rather claims that racial preferences are indispensable to its mission. Finally, Harvard has not considered race-neutral alternatives enough before implementing race-based affirmative action. Harvard argues that race disclosure on applications is nonmandatory and that given the abundance of qualified applicants, they must consider the applicants holistically, including race. Harvard contests the statistical data SFFA’s case relies on and maintains that Harvard does not intentionally discriminates against Asian Americans and does not engage in racial balancing.
Affirmative Action Precedent
Affirmative action began in 1961 when President John F. Kennedy signed Executive Order 10925, which called for government contractors to employ and treat employees equally regardless of “race, creed, color, or national origin”.1 In regards to affirmative action in university admissions, the first landmark Supreme Court case was in 1978, Regents of University of California v. Bakke. Allan Bakke, a white man, applied twice to the University of California Medical School at Davis and was rejected both times, despite having better college GPA and tests scores better than some of the accepted minority applicants. The Supreme Court voted eight to one in favor of Bakke and determined that while racial quotas violated the Fourteenth Amendment and the Equal Protection Clause, race may be considered as long as it is part of a compelling interest and that the process is narrowly tailored to that interest. Otherwise known as strict scrutiny.
In 2003, the Court heard and decided on two more cases: Gratz v. Bollinger and Grutter v. Bollinger. While both cases pertained to the University of Michigan, although Gratz focused on the Office of Undergraduate Admissions (OUA) while Grutter focused on the University of Michigan Law School. The Court ruled six to three in favor of Gratz and determined that the point system used by the OUA was not narrowly tailored enough to meet the strict scrutiny standard; nearly every applicant of an underrepresented minority was admitted. In Grutter, however, the court decided by a five to four vote in favor of the Law School and its policy of utilizing race as one of many areas of consideration for the compelling interest of diversity. And therefore, the Court determined that this type of holistic review of applicants did not “unduly harm nonminority applicants”.2 Most recently, the Court affirmed in 2013 in Fisher v. University of Texas at Austin by a vote of seven to one that the Equal Protection Clause of the Fourteenth Amendment permitted the consideration of race in admissions policies given strict scrutiny is met.
Possible Decisions, Likely Implications
If the case were to reach the level of the Supreme Court, there are likely four possible outcomes: the Court sides with Harvard completely, the Court indicates the SFFA v. Harvard is unique and does not impact affirmative action, the Court strikes down some established precedents regarding the usage of race in admissions processes, or the Court sides with SFFA completely.
If the Court were to side with Harvard completely, this would indicate that Harvard’s admissions policies regarding race are narrowly tailored to the compelling government interest of diversity. Given the conservative leanings of the Court and the facts of the case, this is the least probable.
SFFA v. Harvard is uniquely different from affirmative action precedents of Bakke, Gratz, Grutter, and Fisher in that the group claiming to be discriminated against, while not historically underrepresented, is a minority, as opposed to white challengers in precedents. However, in Bakke, Justice Powell argued that rectifying historical wrongs could not be used to justify discrimination based on race so the plaintiffs being non-white is likely a non-factor. Thus, even though the claim of Asian-American discrimination may be more controversial than white discrimination due to the minority status of the former, it should not play a role in the Court’s final decision. It is therefore unlikely for the Court to claim SFFA v. Harvard a unique case in terms of precedence. (Additionally, Harvard is a private university whereas in the aforementioned cases the defendants are public institutions. This is important to note since under Title VI of the Civil Rights Act of 1964 any program that receives federal funding cannot discriminate based on race.)
The most likely outcome is for the Court to strike down certain precedents set about race in affirmative action and vote in favor of SFFA. Given the current balance of the court, the swing vote is Chief Justice Roberts, who voted against affirmative action in Fisher II. In Grutter, the Court decided that race could be considered a ‘plus’ factor in holistic admissions policies. SFFA’s analysis of Harvard’s admissions data claims that an Asian-American student with 25% of admittance would instead be 95% if he were African American. Although Harvard’s own analyses of the same data attribute these differences to legacy, athletics, and other factors, it is not impossible to consider the Court seizing upon this reason to vote in favor of SFFA while still upholding precedence.
Finally, however unlikely, it is also possible for the Court to completely overturn affirmative action in college admissions. In Grutter, where the idea of diversity as compelling government interest was upheld, the Court recognized the tangible benefits of diversity, such as breaking down stereotypes and better preparing students for the workforce. It is possible that new studies of top universities could show that diversity does not produce enough benefits to justify racial discrimination. Specifically, a study by the Center for Equal Opportunity cites the race-neutral admissions of California Institute of Technology (Caltech) to be 40% Asian-Americans while a similarly ranked university in terms of science, technology, engineering, and mathematics (STEM) education in the Massachusetts Institute of Technology (MIT) utilizes race in its admissions process and has only an Asian-American proportion of around 26%. Despite these differences in supposed diversity levels, Caltech has still been ranked as one of the Top 15 Universities in the United States and Top 10 for STEM fields. Whether the evidence of one school capable of maintaining top education levels without race consideration in admissions is enough to overturn the precedence of diversity as a compelling interest, the core of affirmative action, is very unclear. Nonetheless, it is unlikely for the Court to overturn the entirety of usage of race in admissions completely.