Judge OKs Harvard Racial Preferences, Case May Reach Supreme Court

October 3, 2019 Updated: October 3, 2019

A federal judge rejected a civil rights group’s challenge of affirmative action policies at Harvard University, ruling that its undergraduate college’s allegedly racially discriminatory policies adversely affecting Asian Americans are legally sound.

The ruling by Massachusetts-based District Judge Allison Burroughs, who was appointed by former President Barack Obama, came Sept. 30 in a case cited as Students for Fair Admissions Inc. v. Harvard College.

The unsuccessful plaintiffs plan to appeal.

Edward Blum, president of Arlington, Virginia-based Students for Fair Admissions, said in a statement he was “disappointed that the court has upheld Harvard’s discriminatory admissions policies. We believe that the documents, emails, data analysis, and depositions SFFA presented at trial compellingly revealed Harvard’s systematic discrimination against Asian-American applicants.”

The group “will appeal this decision to the First Court of Appeals and, if necessary, to the U.S Supreme Court,” he said.

The group describes itself as “a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional. Our mission is to support and participate in litigation that will restore the original principles of our nation’s civil rights movement: A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university.”

“[SFFA] alleges that … Harvard College discriminates against Asian American applicants in the undergraduate admissions process to Harvard College in violation of Title VI of the Civil Rights Act of 1964,” Burroughs wrote in the 130-page decision.

“Harvard acknowledges that its undergraduate admissions process considers race as one factor among many, but claims that its use of race is consistent with applicable law,” the decision stated.

Asian American high school students accounted for about 22 percent of total applicants to the college in recent years, even though they comprise less than 6 percent of the U.S. population, the judge wrote.

Burroughs found that “diversity” trumps all other factors in the college admissions process and justifies race-conscious social engineering by Harvard officials. She wrote that “race-conscious admissions will always penalize to some extent the groups that are not being advantaged by the process, but this is justified by the compelling interest in diversity and all the benefits that flow from a diverse college population.”

Specifically, she said Harvard’s affirmative action policy “serves a compelling, permissible, and substantial interest, and it is necessary and narrowly tailored to achieve diversity and the academic benefits that flow from diversity.”

Harvard does indeed use race, albeit benignly, she said, in an effort to implement what the school considers to be an optimal racial mix among undergraduate students.

“To summarize the use of race in the admissions process, Harvard does not have a quota for students from any racial groups, but it tracks how each class is shaping up relative to previous years with an eye towards achieving a level of racial diversity that will provide its students with the richest possible experience,” Burroughs wrote.

“As time marches on and the effects of entrenched racism and unequal opportunity remain obvious, this goal might be optimistic and may need to change.”

But she said the “rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance, and understanding that will ultimately make race-conscious admissions obsolete.”

The Supreme Court has been turning back challenges to the use of race in the college admissions process since the 1970s. Most recently, the Supreme Court ruled 4–3 in Fisher v. University of Texas (2016), that a school’s use of racial preferences didn’t violate the law.

In the case at hand, Burroughs seemed to echo the words of former Supreme Court Justice Sandra Day O’Connor, who felt affirmative action in college admissions was a necessary evil. O’Connor wrote for the 5–4 court in Grutter v. Bollinger (2003), “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”

Making race-conscious admissions decisions is “dangerous,” O’Connor wrote, calling it a “deviation from the norm of equal treatment.” Such programs must “be limited in time,” she stated, adding that “all governmental use of race must have a logical end point.”

As The Weekly Standard calculated, the 25-year time frame meant that by O’Connor’s reasoning, on “June 24, 2028, affirmative action will be unconstitutional.”