Students for Fair Admissions v. Harvard University: Questioning the Effects of Affirmative Action on


Last November, the Justice Department launched an investigation on Harvard University’s admissions decisions.[1] The investigation follows a 2015 complaint by the Coalition of Asian-American Associations that claimed Harvard used “unlawful racial discrimination in [its] college admissions,” violating Title VI of the Civil Rights Act, the Fourteenth Amendment, and Supreme Court rulings.[2] Despite growing numbers of Asian-American college applicants and their qualifications in test scores, grades, and extracurricular in the last two decades, the percent of Asians enrolled at Ivy League institutions, like Harvard, has remained stagnant.[3] The Coalition claims this is due to racial discrimination against Asian-American students “in elite universities where race is used as a factor in the admission processes”.[4]

The Coalition argues that racial stereotypes, prejudice, and quotas, alongside current Affirmative Action policies, have hindered Asian-American applicants.[5] Yet, in its Request for Relief, the Coalition did not cite Affirmative Action as the sole cause of Asian-American discrimination, acknowledging the importance of Affirmative Action to disadvantaged communities and supporting “economically-based Affirmative Action policy.”[6] However, the complaint currently runs alongside a separate federal lawsuit against Harvard, filed by the Students for Fair Admissions.[7] And with Harvard agreeing to allow the Department of Justice to access its admissions records last December, the investigation may impact the 2015 Students for Fair Admissions v. Harvard lawsuit.[8]

Students for Fair Admissions is a non-profit organization fighting against racial admissions policies in colleges that launched its first lawsuit in 2014 against the University of North Carolina.[9] The group’s founder, Edward Blum, organized the Fisher v. University of Texas case at his alma mater, which is one of the most widely-known challenges of Affirmative Action. [10] In 2013, Abigail Fisher, a Caucasian applicant, sued the University of Texas for rejecting her admission to the University’s 2008 class, claiming “the University’s consideration of race in admissions violated the Equal Protection Clause.”[11] Three years after remanding the case back to the Court of Appeals in 2013, the Supreme Court found the “race-conscious admissions program” constitutional under the Equal Protection Clause.[12] In a 4-3 decision, with Justice Kagan withdrawing from the case, the Court held that the University of Texas met the “compelling interest” precedent established in University of California v. Bakke.

In the landmark University of California v. Bakke, Allan Bakke, a white male, sued the University of California Medical School at Davis for rejecting him on the alleged claim that the school “excluded” him “on the basis of race.”[13] At the time of his rejection, the university had a “special program” that reserved 16 out of 100 places for minority applicants and that “rated” minority applicants only against each other.[14] Thus, Bakke, a “qualified” applicant, claimed that the special program discriminated against him on the basis of race and thus violated Title VI of the Civil Rights Act.[15] In 1978, however, the Court held that, though they require “strict scrutiny,” “[r]acial and ethnic classifications” are justifiable by the “goal of achieving a diverse student body.”[16] Thus, though the Court required Allan Bakke’s admittance to the University of California Medical School at Davis, since the university failed to prove Bakke “would not have been admitted even if there had been no special admissions program,” it also reversed the lower court decision that prohibited “race from being used as a factor in university admissions”.[17]

The precedent in University of California v. Bakke was later used in Grutter v. Bollinger, which the Court also cited as precedent in Fisher v. University of Texas at Austin.[18] Like Fisher, Barbara Grutter was a white woman who claimed her 1997 rejection from the University of Michigan Law School was due to the university’s use of “race as a ‘predominant’ factor,” claiming such “discrimination” violated Title VI of the Civil Rights Act and the Fourteenth Amendment.[19] In 2003, the Court upheld precedent from University of California v. Bakke case, that found “diversity…[to be] a [constitutional] compelling state interest” for racial consideration in college admissions as long as a race was "merely a potential 'plus' factor.”[20] The Court thus ruled in favor of the University of Michigan in Grutter v. Bollinger, though stating in the majority opinion that it “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the [diversity] interest.”[21]

However, in their concurring opinion, Justices Ginsburg and Breyer disagreed with the majority opinion that “race-conscious ‘must have a logical endpoint,’" which the Court predicted to be 25 years.[22] It should come to no surprise that, 13 years later, Ginsburg and Breyer concurred with the majority opinion in Fisher v. University of Texas, joined by Justice Kennedy and Justice Sotomayor.[23] In the present Students for Fair Admissions v. Harvard lawsuit, aware of the precedents set in Bakke, Grutter, and Fisher, the plaintiffs argue that Harvard fails to “use race merely as a ‘plus factor,’” as established in Grutter v. Bollinger.[24] Rather, they argue that Harvard utilizes “race as a ‘defining feature… [of an] application.’”[25] Additionally, the plaintiffs argue that Harvard does not use affirmative action to satisfy a “compelling government interest” of diversity as established in University of California v. Bakke.[26] Though applications are increasing from each minority group, the plaintiffs claim that “Harvard admits and enrolls essentially the same percentage of African Americans, Hispanics, whites, and Asian Americans” every year.[27] Thus, “racial admissions preference” is being used, not to increase diversity, but instead to maintain a “predetermined racial balance” in the Harvard student body.[28]

According to an “internal announcement to the civil rights division” obtained by the New York Times last August, the Justice Department’s civil rights division was instructed by the Trump administration to prepare to “investigate and sue universities over Affirmative Action admissions policies deemed to discriminate against white applicants.”[29] While the Justice Department’s investigation is currently ongoing, its findings could instigate further investigations and challenges to Affirmative Action policies of universities nationwide. With simply a 4-3 decision in the Fisher case, a newly appointed Supreme Court Justice, and without the argument that it increases diversity, it is unclear whether or not the Supreme Court would continue to defend Affirmative Action policies in Students for Fair Admissions v. Harvard University. Despite the claims of Students for Fair Admissions, 64% of Asian-Americans are still in favor of Affirmative Action programs “designed to increase the number of black, women, and other minorities on college campuses.”[30] Thus, the Justice Department’s Harvard investigation may ultimately result in changes which benefit white applicants, rather than counteract discrimination to Asian-Americans.

[1] Svrluga, Susan, and Nick Anderson. "Justice Department investigating Harvard's affirmative-action policies." The Washington Post. November 21, 2017. Accessed February 18, 2018. https://www.washingtonpost.com/news/grade-point/wp/2017/11/21/justice-department-

investigating-harvards-affirmative-action-policies/?utm_term=.4558d28c9688.

[2] Coalition of Asian-American Associations. “Complaint Against Harvard University and the President and Fellows of Harvard College for Discriminating Against Asian-American Applicants in the College Admissions Process.” The Chronicle. May 15, 2015. Accessed February 18, 2018. http://www.chronicle.com/items/biz/pdf/Final%20Aisan%20Complaint%20

Harvard%20Document%2020150515.pdf.

[3] to id 2.

[4] to id 2.

[5] to id 2.

[6] to id 2.

[7] Hartocollis, Anemona. "Harvard Agrees to Turn Over Records Amid Discrimination Inquiry." The New York Times. December 01, 2017. Accessed February 18, 2018. https://www.nytimes.com/2017/12/01/us/harvard-justice-department-discrimination.html.

[8] To id 7.

[9] Biskupic, Joan. "Harvard fight could redirect 40 years of affirmative action." CNN. August 06, 2017. Accessed February 18, 2018. https://www.cnn.com/2017/08/05/politics/affirmative-

action-harvard-justice-department/index.html.

[10] Hartocollis, Anemona. "He Took On the Voting Rights Act and Won. Now He's Taking On Harvard." The New York Times. November 19, 2017. Accessed February 18, 2018. https://www.nytimes.com/2017/11/19/us/affirmative-action-lawsuits.html.

[11] "Fisher v. Univ. of TX at Austin, 570 U.S. ___ (2013)." Justia Law. 2018. Accessed February 18, 2018. https://supreme.justia.com/cases/federal/us/570/11-345/.

[12] "Fisher v. University of Texas at Austin, 579 U.S. ___ (2016)." Justia Law. 2018. Accessed February 18, 2018. https://supreme.justia.com/cases/federal/us/579/14-981/.

[13] "Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)." Justia Law. 2018. Accessed February 18, 2018. https://supreme.justia.com/cases/federal/us/438/265/case.html.

[14] to id 13.

[15] to id 13.

[16] to id 13.

[17] to id 13.

[18] "Fisher v. University of Texas at Austin, 579 U.S. ___ (2016)." Justia Law. 2018. Accessed February 18, 2018. https://supreme.justia.com/cases/federal/us/579/14-981/opinion3.html.

[19] "Grutter v. Bollinger, 539 U.S. 306 (2003)." Justia Law. 2018. Accessed February 18, 2018. https://supreme.justia.com/cases/federal/us/539/306/.

[20] to id 19.

[21] to id 19.

[22] to id 19.

[23] to id 18.

[24] Students for Fair Admissions. “SFAA v. Harvard Complaint.” November 17, 2014. Accessed February 18, 2018. http://studentsforfairadmissions.org/wp-

content/uploads/2014/11/SFFA-v.-Harvard-Complaint.pdf.

[25] id to 24.

[26] id to 24.

[27] id to 24.

[28] id to 24.

[29] Savage, Charlie. "Justice Dept. to Take On Affirmative Action in College Admissions." The New York Times. August 01, 2017. Accessed February 18, 2018. https://www.nytimes.com/2017/08/01/us/politics/trump-affirmative-action-universities.html.

[30] Asian Americans Advancing Justice. “Inclusion, Not Exclusion: Spring 2016 Asian American Voter Survey.” Asian and Pacific Islander American Vote. 2016. Accessed February 18, 2018. https://advancingjustice-aajc.org/sites/default/files/2016-09/Inclusion%20Not%20.