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Arguments began Monday in Students for Fair Admissions v. Harvard, a lawsuit that claims Harvard University is discriminating against Asian-American applicants. The trial is being closely watched for signs about the future of programs intended to boost the presence of underrepresented groups on college campuses across the country.
More specifically, SFFA v. Harvard largely focuses on whether Harvard violated the Civil Rights Act by discriminating against Asian Americans. This question is not directly connected to affirmative action, which was established as a way to weigh the applications of marginalized groups (such as women or people of color) in school admissions, job applications, and other areas where they have been historically shut out.
But with the case almost guaranteed to be appealed to the Supreme Court, the questions that it deals with could ultimately affect how and whether schools use processes like affirmative action in selecting students and ensuring diversity on campus.
In the months leading up to the trial, the plaintiffs have argued that the only way to truly ensure that Asian Americans stand an equal chance in admissions is if race is completely removed from the process. This has prompted those supportive of race-conscious admissions to rally around Harvard. The university argues that its “holistic” admissions process is necessary to ensure a diverse student body and does not discriminate against Asian-American students.
The trial raises complicated questions about the meaning of academic merit, and what that should mean when we think about race in college admissions. For Asian Americans, the case has also revealed significant divisions in support for affirmative action, making it clear that the demographic can hardly be treated as a monolith.
Here’s what you need to know as the trial continues.
What’s the background on this case?
In November 2014, Students for Fair Admissions (SFFA) filed its lawsuit, alleging that Harvard is “employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program” that are biased against Asian-American applicants.
The plaintiffs say internal data shows Asian-American applicants are rated lower on personal metrics, despite outperforming white applicants in other areas. SFFA argues that Harvard effectively uses a quota to cap the percentage of Asian-American admissions, and that the school engages in “racial balancing” to maintain a certain racial breakdown on campus.
To remedy this, SFFA argues that Harvard, and ultimately all colleges, should no longer consider race in its admissions process, and that Supreme Court rulings in support of affirmative action have “been built on mistakes of fact and law.”
Harvard has defended its “holistic review” process that individually assesses each applicant and considers a number of factors, including academics, extracurriculars, and personal factors, with the goal of making each class diverse. The university says that while race is one of the many factors considered for assembling a class, it is never used against an applicant, nor is it a deciding factor for any applicant.
Who are the parties in the trial?
Harvard University is the defendant in the case, with several school administrators playing a central role. The defense is also expected to call witnesses, including Harvard alumni and students from a range of racial backgrounds, to make the case that the university’s current admissions system is beneficial to student life and necessary to create diversity on campus.
Identifying the plaintiffs in this trial is a bit more complicated. SFFA represents a group of anonymous Asian-American plaintiffs rejected from Harvard. The individual plaintiffs, who are not expected to testify, say they are remaining anonymous to avoid harassment for their part in the lawsuit.
Because of this, the public face of the trial has become Edward Blum, a white, 66-year-old legal strategist. Blum leads the Project on Fair Representation, a group founded in 2005 to “support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.” Blum also created SFFA to “restore the original principles of our nation’s civil rights movement” by completely eliminating the use of race in college admissions. In addition to Harvard, the group is also suing the University of North Carolina at Chapel Hill on similar grounds.
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Blum is known in legal circles for his efforts to get cases before the Supreme Court, all of them involving race in one way or another. In 1995, he was part of a group that brought Bush v. Vera before the court, successfully convincing the court to redraw several majority-minority electoral districts in Texas. He was also instrumental in Shelby County v. Holder, the case which gutted a key portion of the Voting Rights Act in 2013.
But Blum is perhaps best known for his work with Abigail Fisher, a white woman who argued in a pair of Supreme Court Cases in 2013 and 2016 that she was denied a spot at the University of Texas Austin due to her race.
Here’s how Blum described his work to Mother Jones in 2016:
Blum insists he is fighting for civil rights, and he is adamant that he’s not just seeking white plaintiffs with racial axes to grind. “Groups like mine are not looking for Donald Trump-type supporters. We are looking for people who have honest, levelheaded opinions about equal representation. We reject people who are anti-immigrant. We reject people who are anti-Muslim. We reject people who have an antithetical view of American civil rights laws.” He says his efforts to find plaintiffs are no different from what civil rights groups and “the marriage equality people” do.
Blum’s open desire to end any consideration of race in college admissions, coupled with his action on other race-related court cases, has led his critics to argue that he is using Asian Americans as a prop to strike down affirmative action.
This argument has been complicated slightly by the emergence of a vocal coalition — largely composed of a “new generation of Chinese-American activists” according to BuzzFeed — who agree that Asian Americans are denied admission to elite colleges due to their race. Instead of considering race at all, they argue, schools should simply focus on more quantitative elements like test scores, GPA, and academic honors.
Why is this case getting national attention?
Up until now, most cases about race in college admissions have been brought by white plaintiffs like Fisher, who argue that they are harmed by “reverse discrimination” and therefore pushed out of colleges by less-qualified applicants of color. Those cases have led to restrictions in how affirmative action can be used, but no case has actually ended the practice in its entirety.
The Harvard case, both sides argue, could change this. Rather than a white plaintiff, this case relies on a group of high-achieving Asian Americans arguing that a policy meant to help students of color is actually hurting them. Unlike earlier plaintiffs, including Fisher, whose GPA and SAT scores were not as strong as her peers, the plaintiffs in this case have academic records that are much harder to criticize.
All of this has led to a belief that the Harvard decision will have a considerable impact on the future of affirmative action, a belief that has been furthered by the plaintiff’s argument that Asian-American discrimination is happening solely to increase the number of Harvard students from other racial groups. While affirmative action does play a significant role in each side’s arguments, presiding Judge Allison D. Burroughs says she will focus on whether Harvard is discriminating against Asian-American students.
Some observers, like Harvard Law’s Jeannie Suk Gersen, argue that Burroughs’s determination on that matter doesn’t necessarily need to include a broader ruling on affirmative action. But because the case is likely to be appealed, the case could have a drastic effect on how elite schools use race in admissions.
“This trial is about what Harvard has done and is doing to Asian-American applicants, and how far Harvard has gone in its zeal to use race in the admissions process,” said Adam Mortara, a lawyer for SFFA, during the trial’s opening statements on Monday. Mortara added that “the future of affirmative action is not on trial here.”
But even if the phrase ”affirmative action” is no longer explicitly mentioned, it still plays a significant role in shaping attitudes about the case. Some of this is due to the Trump administration, which announced in 2017 that it was investigating Harvard for allegedly discriminating against Asian Americans (in September the DOJ and DOE also began investigating Yale).
Over the summer, the administration rescinded Obama-era guidance on race in admissions, urging schools to adopt a race-neutral approach. And in August the Department of Justice filed a statement of interest siding with the plaintiff, arguing that Harvard “failed to show that it does not unlawfully discriminate against Asian Americans.”
The Trump administration’s involvement has made it clear that it sees discrimination against Asian Americans as something that should be solved by eliminating any consideration of race at all. With a solid conservative majority now in place following Brett Kavanaugh’s confirmation to the Supreme Court, there is concern that if this case makes it to the court, it will lead to ending affirmative action entirely.
Is there any truth to the idea that elite colleges discriminate against Asian Americans?
The Harvard case is not the first time that a college was accused of discriminating against Asian-American students. In the 1980s, student activists noticed that Asian-American college admission rates remained stagnant despite a rapid increase in the number of college-aged Asian Americans. They argued that the stagnation was largely due to biased admissions practices that kept the number of admitted Asian Americans relatively low, while favoring white applicants.
The complaints led to internal investigations of admissions practices at schools including Stanford, Harvard, Princeton, and the University of California Berkeley. While some schools, like Berkley, maintained that they did nothing wrong and that Asian-American students were overrepresented relative to their share of the general US population, Stanford acknowledged that unconscious bias may have played a role in its process.
When the Reagan administration addressed the allegations of discrimination against Asian Americans in the late 1980s, it ignored that much of the claimed discrimination may have benefitted white students, instead arguing that the biggest hurdle affecting Asian-American applicants was the affirmative action programs aimed at helping racial minorities. As Vox’s Alvin Chang notes, Asian American students accused the Reagan administration of “racial mascoting.” Affirmative action is now often framed as hurting Asian-American college applicants.
Civil rights groups like the NAACP Legal Defense and Education Fund say this framing pits Asian Americans against other minorities and also ignores how affirmative action benefits those from less-represented Asian-American and Pacific Islander subgroups. Research from academics Karthick Ramakrishnan and Janelle Wong has shown that most Asian Americans support affirmative action, although support has dropped off considerably among Chinese Americans.
Data shows that Asian-American students are overrepresented at many of America’s most selective schools. At Harvard for example, Asian American students were roughly 22 percent of those admitted in 2017 but Asian Americans were just 5 percent of the population.
Some observers, such as Yale Law’s Amy Chua, say that the success of Asian-American students is largely due to cultural reasons, an argument that has often been used to frame Asian Americans as a “model minority.” But in 2014, a pair of California researchers found that Asian-American students’ high level of achievement was more likely due to students having better access to resources and living and studying in close proximity to other high achievers due to a concerted effort by their families.
This isn’t to say that Asian Americans face zero bias in college admissions. A Department of Education investigation under the Obama administration into allegations of racial bias at Princeton, for example, revealed that admissions officers referred to Asian American applicants as “standard premeds” and “familiar profiles.”
The Education Department ultimately conceded that the admissions officers made comments “associated with Asian stereotypes,” but noted that similarly stereotypical comments were made about black and white applicants as well. The agency ultimately determined that the school did not discriminate against Asian-American applicants and that race was not a deciding factor in the admissions process.
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SFFA says it has found evidence that proves Harvard is deliberately (and illegally) limiting the number of Asian Americans accepted, pointing to a part of Harvard’s holistic review process known as the “personal rating.” This part of the application process considers things like teacher recommendations, alumni interviews, and personal statements.
The plaintiffs say internal reports from Harvard’s Office of Institutional Research suggest the university regularly underscored Asian-American applicants on this portion of the review. They say Harvard regularly rated Asian Americans as less “courageous” or “less “likable” than white students, and admitted more whites than Asian Americans, despite Asian Americans besting whites on the other metrics.
Harvard counters that the reports were incomplete and did not fully capture the nuance of the school’s admissions process, and has said that weaker teacher recommendations are behind Asian American students’ lower personal ratings. Both sides have presented dueling expert analyses over the data.
With the trial in its first days, it is still unclear how much the personal rating information will factor into Burroughs’s ruling. For some observers, the news has fueled concerns that Harvard does indeed discriminate against Asian Americans.
“It’s angering to witness the dismissive, sweeping way that admissions officers discuss Asian-American applicants,” Michael Li, a senior counsel at the Brennan Center, wrote for Vox. “The writing-off of these students as nondistinctive, interchangeable kids smacks of racist stereotypes often used against Asians in this country.”
What is the status of affirmative action currently in college admissions?
Cases on the use of affirmative action in college admissions have emerged repeatedly since it was first used at colleges in the 1960s, leading to a string of changes passed down by the Supreme Court.
In 1977, the court heard Regents of the University of California v. Bakke, a case where a white medical school applicant challenged his rejection from the University of California Davis arguing that he was not admitted because the school had a quota that admitted nonwhite applicants with lower scores. The Supreme Court struck down Davis’s program because it used a racial quota, but ruled that schools could continue to use affirmative action.
The Bakke ruling changed how schools could consider race in admissions. Previously, affirmative action was considered a remedy to the effects of structural racism and discrimination that affected marginalized groups.
In his opinion, Supreme Court Justice Lewis Powell (the deciding vote in Bakke), wrote that addressing structural racism was too broad of a goal, and recommended schools adopt an approach like Harvard’s, which considers race as one of many factors that produce a diverse class. Thus the court created a new compromise: Affirmative action in admissions was permissible, but only if it was used to foster diversity.
Affirmative action was further narrowed in other decisions. In 2003, the court ruled in Grutter v. Bollinger that race should be considered alongside “all factors that may contribute to student body diversity,” like extracurricular activities and volunteering.
Ten years later, in the first Fisher v. Texas case, the court sent the case back to a lower court, but not before explaining that race could only be considered under certain circumstances, and only after a school provided proof that considering race was the only way it could achieve a diverse student body. When Fisher appeared before the court again in 2016, the court ruled 4-3 that affirmative action was permissible, but only if, as Justice Anthony Kennedy explained in the majority opinion, race was a “factor of a factor of a factor.”
So affirmative action today is very different from its origin. It is much more narrow and is used to support diversity rather than rectify historical injustices. SFFA argues that even this narrowed use of the practice is a problem.
Why is affirmative action so controversial?
President John F. Kennedy established affirmative action programs by executive order in 1961 to advance the goals of “nondiscrimination” within society at large. As the New Yorker’s Hua Hsu writes, the government did not create detailed guidelines on where or how affirmative action should be used. But as legal cases challenging affirmative action in college admissions increased in the 1970s, that became the main way the issue was discussed.
In some ways, framing affirmative action as creating a widespread problem in college admissions isn’t entirely accurate, and the conversation largely revolves around a small number of the most selective schools in America. At elite schools like Harvard, Princeton, and Yale, admissions officers argue that given the limited number of black and Hispanic applicants to elite colleges, being able to consider race is the only way that these schools can maintain a racially diverse student body.
The schools also argue that basing decisions solely on grades and test scores would be impossible. In a legal filing submitted before the trial, Harvard officials said the school received more than 37,000 applications for roughly 2,000 spots in the class of 2019.
The university said more than 8,000 of those applicants had perfect grades, and more than 5,000 had a perfect math or verbal SAT score. Considering things like a student’s extracurriculars, volunteer work, and race in addition to their grades, the school argued, is necessary to achieve a more diverse class than it could get through test scores alone.
The plaintiffs say this argument — coupled with internal Harvard reports that suggest the numbers of black and Hispanic students admitted to the school would drop significantly if the university were forced to change its admissions system — is proof that less-qualified students are getting in due to their race.
That counterargument gets at an issue that has long animated debates over affirmative action. Some say acknowledging an applicant’s race automatically means penalizing another more qualified applicant for being of a different race. Critics of admission systems like Harvard’s argue that affirmative action policies create an unfair system of rewards and penalties where black and Hispanic applicants win while white and Asian-American applicants lose.
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But for Harvard and the civil rights groups defending its admissions policy, being able to consider race — even if it is just limited to Justice Kennedy’s “factor of a factor of a factor” framing — is necessary to ensure that students of color continue to make it to Harvard and similar schools.
Their claims are supported by data: A 2017 New York Times analysis found that even with race-conscious admissions policies in place, black and Hispanic students are actually less represented at America’s top colleges now than they were 35 years ago. The analysis notes that the largest growing demographic at many of these top universities has been among Asian-American students.
It is that last point that so strongly animates the reaction to this case. Harvard and similarly situated schools are considered the best in America, where connections and a diploma can open up doors that can drastically change one’s future. The debate over who gets into Harvard is about more than the importance of test scores — it is about who has access to America’s elite institutions in an age when power is increasingly held by a select few.
