The Harvard Ruling in Context: How the Courts Shape Affirmative Action and Diversity as an Educational Good by Katie Crabtree with commentary from Peter Piazza

This article is informed by a conversation between the author and Dr. Peter Piazza, a postdoctoral fellow at Penn State’s Center for Education and Civil Rights. You can find more about Dr. Piazza’s work here. The members of the AJE Forum Student Board would like to extend their thanks to Dr. Piazza for his time, knowledge, and expertise.

On September 30, Judge Allison Burroughs made her ruling in the United States District Court of Massachusetts Boston Division on the closely watched Students for Fair Admissions v. Harvard case. Judge Burroughs determined that “Harvard’s admission process survives strict scrutiny. It 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” (Students for Fair Admissions v. Harvard, 2019, p. 127). In her closing statement, Judge Burroughs stressed that it is regrettable that race-conscious admissions are still necessary for achieving a diverse student body but ended with a hopeful note that this will not always be the case. This ruling is consistent with other high-profile cases surrounding the lawful use of affirmative action at universities.

While the judge ruled in Harvard’s favor, the case is far from resolved. The plaintiff has indicated an intention to appeal the ruling, up to the Supreme Court if need be (Students for Fair Admissions, 2019b). This lawsuit is one of a string of legal proceedings that render affirmative action an entity in flux. Using the Harvard ruling as a springboard, this article will follow the continually changing parameters of affirmative action through historic rulings. This unraveling thread puts into sharp relief the paradox of the American meritocratic instinct and efforts to combat racially segregated access to opportunity at the point of admission to university.

What was the case about?

Since Students for Fair Admissions (SFFA), the plaintiff, filed against Harvard in 2014, commentary on the case has been entangled with affirmative action, university admissions, and pundits’ eyes have been set toward the Supreme Court. SFFA also filed against University of North Carolina Chapel Hill (UNC-Chapel Hill) in November 2014 and has likewise brought a case against University of Texas at Austin (Blum, 2018) against their race-conscious admissions.

SFFA is a non-profit organization. It solicits members who believe they have been victims of racial discrimination in university admissions, the parents of applicants and prospective applicants, as well as individuals who are against race-conscious admissions (SFFA, 2019). Member lists are not disclosed, but the organization states that it has 20,000 members (SFFA, 2019). The president of SFFA is Edward Blum (SFFA, 2019), who is a financial analyst. Blum has recruited individual plaintiffs or sued through SFFA against universities for the affirmative action practices in admissions (Hartocollis, 2017). Blum[1] was also behind Fisher v. University of Texas at Austin in which a white applicant, Abigail Fisher, claimed she was denied admission due to the university’s race-conscious admissions policy (Watkins, 2017). The Supreme Court upheld UT-Austin’s admissions practices in June 2016 (Fisher v. University of Texas at Austin, 2019). Unlike Fisher v. University of Texas at Austin, the cases filed against Harvard and UNC-Chapel Hill by SFFA do not name any individual applicant harmed by an admissions policy (Students for Fair Admissions v. Harvard, 2014a; Students for Fair Admissions v. University of North Carolina, 2014).

In the Harvard case, SFFA stated that “at least one” (Students for Fair Admissions v. Harvard, 2014a, p. 8) member of SFFA who is Asian American applied to Harvard and “was denied the opportunity to compete for admission to Harvard on equal footing with other applicants on the basis of race or ethnicity due to Harvard’s discriminatory practices” (Students for Fair Admissions v. Harvard, 2014a, p. 9). This applicant has remained anonymous. The complaint also lists members of SFFA who are prospective applicants to Harvard. That SFFA has not named any individual applicants who have been adversely affected by racial discrimination in admissions signifies a substantial change in legal strategy. SFFA is not claiming that a person has been discriminated against in admissions, but that the use of race-conscious admissions to achieve diversity is in itself discriminatory.

SFFA also asserted that the Harvard admissions plan violates Title VI of the Civil Rights Act of 1964. The plaintiff claimed that Harvard uses racial classification in its admissions process to hold Asian Americans to a higher standard than other applicants, practices “racial balancing” of its freshman intake, uses race as a crucial factor in its admissions process, and that “Harvard is using race in admissions when race-neutral alternatives could achieve diversity” (SFFA v. Harvard, 2014a, p. 5). That diversity is an educational good is not, however, under scrutiny in the case.

The defendant argued that diversity “on a variety of realms” within the student body (President and Fellows of Harvard College, 2018, p. 15) is part of the Harvard educational experience. Race is among the attributes deemed important for educational diversity (President and Fellows of Harvard College, 2018). As such, Harvard seeks to admit a diverse incoming class.

In listing the admissions process, the defendants argued that each applicant is evaluated along subcategories for academic, extracurricular, athletic, and personal performance along with their school rating, resulting in the applicant’s overall rating. The personal evaluation “summarizes the applicant’s personal qualities based on all aspects of the application, including essays, letters of recommendation, the alumni interview report, personal and family hardship, and any other relevant information in the application” (President and Fellows of Harvard College, 2018, p. 11). Applicants’ races are not taken into account for their personal evaluation (President and Fellows of Harvard College, 2018, p. 11). Race, when applicants disclose it, can be considered for admissions decisions but only toward the applicant’s overall rating and “is taken into account only flexibly, not automatically or mechanically” (President and Fellows of Harvard College, 2018, p. 20). While SFFA argued that Asian American applicants to Harvard are consistently given lower personal ratings, race is not factored into that component of admissions, but into an applicants’ overall rating.

On this count, Judge Burroughs found that there was no evidence to support SFFA’s claim that Asian American’s lower personal ratings were due to racial discrimination: “Even assuming that there is a statistically significant difference between how Asian American and white applicants score on the personal rating, the data does not clearly say what accounts for that difference. In other words, although the statistics perhaps tell ‘what,’ they do not tell ‘why,’ and here the ‘why’ is critically important” (SFFA v. Harvard, 2019, p. 127). That is, while there may be variances in scores for applicants, it must be proven that the variance is due to explicit racial discrimination, which the court did not find in this case. This demonstrates the fallibility of SFFA’s legal strategy. Without a single admissions decision under scrutiny, it is difficult to establish that racial discrimination was the cause of an admissions decision.

SFFA’s claim that Harvard could achieve diversity with race-neutral means did not hold up in this case. Alongside its race-conscious admissions scores, Harvard also engages in race-neutral means of increasing the diversity of its student body. This includes recruitment of first-generation students and students from modest economic backgrounds (President and Fellows of Harvard College, 2018). After a review of its admissions procedures, Harvard determined that omitting its race-conscious admissions procedures and using only race-neutral alternatives would decrease the diversity of its incoming class. Notably, Harvard dismissed the possibility of using regional and geographic criteria over race conscious practices in admissions, stating that regional preferences at the expense of other applicant attributes would impact its admissions ethos (President and Fellows of Harvard College, 2018, p. 35).

As diversity, racial and otherwise, is considered a compelling interest for educational institutions by the courts, universities have the right to create admissions policies to recruit diverse incoming classes, by both race-conscious and race-neutral means. The ruling of the Harvard case establishes that race-conscious admissions that are narrowly tailored and unsystematic survive strict scrutiny to support the educational good of diversity.

How does this case play into the history of legal proceedings on affirmative action?

While universities have traditionally been treated as institutions with a special status, since Title VI and the introduction of affirmative action, the courts have played a crucial role in defining how affirmative action, or more specifically race-conscious practices, can be practiced lawfully by universities. Here I consider how ‘affirmative action’ was signed into law and, in tandem with Title VI, has left ambiguous parameters for the permissible use of race-conscious affirmative action. It is an entity in flux, open to interpretation and practice, as well as dispute. I also outline key cases that have established the legal precedents for the use of race-conscious admissions under the ambiguous terms of affirmative action. The Bakke decision, United States v. Fordice, as well as Grutter v. Bollinger and Gratz v. Bollinger have all established that universities must at once appease meritocracy, admitting the best candidates regardless of race, while also redressing racism by ensuring their admissions expand opportunity to those who have been historically disadvantaged in access to educational opportunity. The case brought against Harvard plays into this history, whereby affirmative action practices have always been contested in the courts. The crucial difference, however, in the Harvard case is that the lawsuit did not include a complaint by a single individual against an actual admissions decision. While this legal strategy failed, it has implications for the shifting notions of the point and purpose of affirmative action.

The phrase “affirmative action” is first seen in federal law in President John F. Kennedy’s Executive Order 10925. This established the President’s Committee on Equal Employment Opportunity. In stipulating the obligations of contractors employed by the federal government, the order states “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship” (Executive Order 10925, Section 301 §1). This is repeated in the Equal Employment Opportunity Executive Order 11246 in 1965 by President Lyndon B. Johnson (Executive Order 11246).

In between these Executive Orders, the landmark 1964 Civil Rights Act was passed which outlawed segregation of public places, including schools, and outlawed discrimination in employment. Under the Act is Title VI, which states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” (US Department of Justice, 2016b, p. 4390 §2000d). This extends to any “program or activity” of an entity that receives federal financial assistance, such as “A college, university, or other postsecondary institution, or a public system of higher education” (US Department of Justice, 2016a, p. 1076, § 42.102, 2(i)). However, Title VI “does not apply to, affect, interfere with, or modify the operation of any otherwise lawful affirmative action plan or program” (US Department of Justice, 2016b, p. 4391, §2000d, 3–302).

To recap, Title VI prohibits discrimination in employment in the negative. Discrimination by race is prohibited in employment and educational programs. An applicant cannot be denied admission on the basis of their race or membership of any other protected class. However, it does not impact any lawful affirmative action plans and programs. The parameters for legal affirmative action are unclear. While Title VI prohibits discrimination based on race, it also allows for lawful positive discrimination to open access for members of historically disadvantaged groups. The ambiguity on the parameters of what is lawful and what is unlawful affirmative action means that it is up for interpretation by universities or other entities that receive federal funds and as such, the courts.

The ruling of the Harvard case establishes that race-conscious admissions that are narrowly tailored and unsystematic survive strict scrutiny to support the educational good of diversity.

A crucial case in establishing what is permissible affirmative action procedure was the 1978 Bakke Decision of the US Supreme Court. In this case, a white applicant to the University of California at Davis (UC Davis) Medical School was denied admission two years in a row; Allan Bakke filed a lawsuit against the institution stating that he had been denied admission based on his race (Regents of the University of California v. Bakke, n.d.). It was found that UC Davis Medical School operated a special admission program that equated to reserving admissions spots for minority applicants (Regents of the University of California v. Bakke, 1978). In the divided US Supreme Court ruling, it was ruled that Bakke should have been admitted and that the use of racial quotas in admissions was not permissible under the Fourteenth Amendment but that race, among a variety of other criteria was, permissible under the compelling interest to expand opportunity in the medical profession to disadvantaged minorities (Regents of the University of California v. Bakke, 438 U.S. 265, no. 7811). Again, the parameters of affirmative action are ambiguous. At once race can be used as a criterion in admissions to promote the compelling interest in admitting previously underrepresented groups, but it cannot be used in a systematic or procedural way such as a quota system.

Another case, which was first raised in the 1970s but not decided upon at the US Supreme Court until 1992 is crucial for establishing the parameters of affirmative action for universities: United States v. Fordice. First brought to the courts in 1975, private petitioners filed a complaint against the Mississippi public university system, claiming that in the wake of Title VI, the system had not done enough to racially desegregate its universities (United States v. Fordice, 505 U.S. 717, 1992). It was found that the Mississippi university system, while using race-neutral admissions, had not done enough to ensure that racial discrimination from the past university system had been overturned (United States v. Fordice, n.d.). Here the logic of the ruling was that race-neutral means failed to revert past racial discrimination and resulted in differential admissions decisions according to race. Thus, it failed to take enough affirmative action in the positive sense.

Two other cases are important for setting out the parameters under which universities can engage in lawful affirmative action to promote diversity in their incoming classes. Both cases involve the University of Michigan: Grutter v. Bollinger and Gratz v. Bollinger. Each case surrounds different admissions policies to different schools within the university. In Grutter v. Bollinger, a white applicant to the University of Michigan law school was denied admission in 1996 and filed a lawsuit, complaining that the admissions policy violated the Fourteenth Amendment and Title VI. When the case reached the US Supreme Court in 2003, it ruled that the law school’s use of race in its admissions was lawful and in keeping with the Bakke decision because race was used in combination with other admissions criteria (Grutter v. Bollinger, n.d.; Skelton, n.d.).

In the same year, in Gratz v. Bollinger two undergraduate white applicants were denied admission to the University of Michigan undergraduate class in 1995 and filed a complaint citing the Fourteenth Amendment and Title VI (Gratz v. Bollinger, n.d.; Kemp & Skelton, n.d.). In contrast with Grutter v. Bollinger, the US Supreme Court found that the undergraduate admissions policy did not use race in a narrowly-tailored way to promote diversity. The undergraduate admissions policy operated a points-based system, under which minority applicants were automatically awarded twenty points. This echoes the Bakke decision. The use of race in admissions is permitted, but only in a flexible way and in tandem with other factors. These parameters encapsulate the tension inherent to race-conscious affirmative action. Race can be lawfully used in affirmative action as positive discrimination, to promote diversity or open opportunity to disadvantaged groups, simultaneously race cannot be used as negative discrimination.

These court cases demonstrate that, due to its ambiguous legal definition, affirmative action is in flux. How universities interpret the legal parameters of affirmative action and translate them into policy is contestable, particularly the use of race-conscious admissions practices. While the Harvard case is in keeping with this history, there is a significant change in SFFA’s approach. In all of the aforementioned cases, there have been individuals who have filed against universities for actual admissions decisions. In the Harvard case, no single individual has come forward to complain about a specific admissions decision. As mentioned above, this failed and the judge upheld Harvard’s admissions. This is in part because without an individual complaint it is impossible to establish negative discrimination. In addition, Harvard’s race-conscious admissions were upheld because they fell within the hazy parameters set out by the legal precedents above. Harvard’s narrowly tailored use of race-conscious admissions to promote diversity survived strict scrutiny. Even though Harvard’s practices have thus far been upheld by the judiciary, its place in a long history of legal proceedings demonstrates the precarious position of race-conscious affirmative action in university admissions.

While SFFA’s legal strategy in this case failed, its reasoning speaks to shifting notions surrounding affirmative action. Without a complaint about a single admissions decision, SFFA has complained against the use of race-conscious admissions in general. This change signifies that what is under scrutiny is not only the use of affirmative action as negative discrimination but positive discrimination as well. This shift intersects with changing notions of the purpose of affirmative action and what diversity means in educational contexts.

How does the case against Harvard demonstrate the changing spirit of affirmative action and the notion of diversity as an educational good?

In the Harvard case and legal precedents of US Supreme Court rulings, the notion of diversity has shifted and reflects a withering of the spirit of affirmative action for social justice. In more recent proceedings, diversity is consistently regarded as an educational good. For example, in Grutter v. Bollinger the US Supreme Court held that the “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or §1981” (Grutter v. Bollinger, 2003, p. 2). Similarly Judge Burroughs echoed the notion that part of the Harvard educational experience is the diversity of students as a credible educational good and interest. In her ruling, she states, “It is somewhat axiomatic at this point that diversity of all sorts, including racial diversity, is an important aspect of education… The evidence at trial was clear that a heterogeneous student body promotes a more robust academic environment” (SFFA v. Harvard, 2019, p. 6-7). This notion of diversity, which Judge Burroughs treats as common sensical, is that diverse student bodies mean a better academic experience. This consigns diversity to the academic and educational remit of universities. As Stefkovich and Leas (1994) argue in their analysis of the history of the desegregation of American higher education, academic freedom has historically meant noninterference by the judiciary in higher education administrative and educational decisions. Couching diversity as an educational good at once protects it under the remit of universities’ academic freedom while simultaneously reducing diversity’s bearing as a good of social justice.

SFFA’s complaint against Harvard is not about diversity as an educational good but the use of race as an admissions criteria to achieve that diversity, which is to contest it as a social justice good. In turn, Harvard’s defense of its admissions practices and ethos is dependent upon diversity as an educational good and therefore under their right to academic freedom. To defend their use of race-conscious admissions, Harvard argued that race-neutral admissions practices would result in a less diverse incoming freshman class. As such, the educational good of diversity would be diminished. Indeed, Harvard’s admissions practices were upheld in the court decision precisely because they supported the educational good of diversity. Judge Burroughs ruled that “race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding” (SFFA v. Harvard, 2019, p. 130). This notion of diversity as an educational good differs from the way diversity is discussed as a means of redressing historically underrepresented groups such as in the Fordice case discussed above and the spirit of the executive orders that instated affirmative action.

The shift from diversity as a good of social justice to an educational good intersects with the American meritocratic instinct and pervasive systems of racial oppression. America is a diverse, plural, multicultural society, so why is diversity an educational good and not a fact of life at our most elite higher educational institutions? Why do elite institutions have to tinker with admissions to achieve that diversity which is already[KM1]  a defining factor of the general population?

This conundrum is invoked by SFFA’s mission statement: “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, 2019). At face-value this is difficult to oppose. The American moral intuition, at least how it is written in law, grants equal protection of the law, regardless of race or membership of any other protected group. However, at our higher educational institutions, especially elite ones, there are pervasive differences in who tends to be admitted. Just how to balance the tension between merit and disenfranchisement at the point of admission has played itself out in legal proceedings since at least the Fourteenth Amendment. Or as William K. S. Wang (2019) summarizes the legal question that SFFA v. Harvard raises, can universities discriminate against “overrepresented” groups, as in racial groups, to achieve diversity at their institutions? The simple answer to this question is no. In the Bakke decision and Gratz v. Bollinger mentioned above, it has already been established that universities can only use race as one criteria among others in a narrowly-tailored way to promote diversity.

In their complaint against Harvard’s use of race-conscious admissions to achieve diversity, SFFA argued that the same diversity could be achieved through race-neutral means. As mentioned above, Harvard refuted this by stating that race-neutral admissions would decrease the diversity of its incoming class. This is due to the to the fact that race has pervasive and systematic effects on educational and life opportunities and K-12 remains racially segregated. Across the US, schools with more students of color receive 13% less funding than schools with more white students, whereas schools with more low-income students enrolled receive 7% less funding (Morgan & Amerikaner, 2018). Moreover, research suggests that gains in desegregating communities and schools has stagnated since the 1980s (Orfield, Frankenberg, Ee, & Kuscera, 2014; Lichter, Parisi, & Taquino, 2015; and Chang, 2018). A recent UCLA report demonstrates that non-white students have seen increased racial segregation in enrollment at their schools. It states that, “Since the peak of desegregation for black students in 1988, the share of intensely segregated minority schools, that is, schools that enroll 90-100% non-white students, has more than tripled from 5.7% in 1988 to 18.2% in 2016” (Frankenburg, Ee, Ayscue, & Orfield, 2019). Such inequities map onto patterns of differential earnings and educational attainment, with black students from similar income brackets to white peers with lower high school graduation rates, lower rates of college attendance, and lower lifetime earnings (Barnum, 2013; Chetty et al., 2018).

Moreover, the race-neutral means of achieving diversity at universities, including SFFA’s proposition of using geographical information to make admissions decisions, mask the fact that schooling remains racially segregated. For example, the University of Texas at Austin, in order to achieve a diverse student body, automatically admits the top 6% of students at each Texas high school (Jaschik, 2017). On this “race-neutral” admissions tactic, Dr. Piazza comments “What’s really smart about that but also sad is that they’re diversifying based on the existing segregation in schools…. They’re saying ‘Look our schools are so segregated that if we take the top 10% from here, and the top 10%[2] from here, then we’ll be integrated’” (P. Piazza, personal communication, 23 January 2019). The pursuit of diversity as an educational good masks racist systems of marginalization and even race-neutral means of achieving diverse student bodies rely upon these systems.

Despite the favorable ruling towards Harvard’s use of race-conscious admissions, its lawful parameters continue to hold a precarious position. Not only is the ruling subject to appeal by SFFA, but affirmative action has always been prey to interpretations by universities, the strict scrutiny of the courts, and the caprice of public sentiment. The ambiguities with which it has been written into law leave affirmative action straddling the gap between pervasive racially segregated access to educational opportunity and the American meritocratic impulse that denies systemic racial segregation in American schooling. With an appeal and other cases filed by SFFA pending, the future of affirmation action is unclear. If we are to ensure equality of educational opportunity and that our most elite universities reflect the diversity of our nation, it is time for unequivocal action.

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[1] It should be noted that Edward Blum is not a student, nor has he apparently been discriminated against in university admissions as he himself has not raised an individual legal complaint against any educational institution. The credibility of the organization’s standing to file suit against Harvard played into the proceedings. It was found that SFFA had associational standing to file suit (SFFA v. Harvard, 2019, p. 93). Blum, despite not having been an injured party in admissions decision, has been behind several legal proceedings against race-conscious admissions.

[2] The University of Texas at Austin has decreased the percentile from 10 to 6 (Jaschik, 2017).

Katie Crabtree is a Ph.D. student in the Philosophy of Education at Leeds Trinity University, University of Leeds. Her research attempts to re-imagine liberal arts university education and the meaning of being a student. She focuses on the philosophy of Jean-François Lyotard. Katie holds a M.A. in the Philosophy of Education from UCL Institute of Education, a M.Sc. in Higher Education from the University of Oxford, and a B.S. in Psychology from Grand Valley State University.

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