First Circuit Court of Appeals Sides With Harvard University in Affirmative Action Lawsuit

On Thursday, November 12, 2020, a panel for the U.S. Court of Appeals, First Circuit, ruled in favor of Harvard University in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The panel ruled that Harvard’s race-conscious undergraduate admissions process does not violate Title VI of the Civil Rights Act of 1964.

The district court lawsuit, filed in 2014, claimed that Harvard’s undergraduate admissions process discriminated against Asian American applicants in favor of white applicants. Students for Fair Admissions (“SFFA”) alleged that the undergraduate admissions process failed to meet the U.S. Supreme Court’s standards for use of race in admissions. The district court denied Harvard’s motion to dismiss the lawsuit for lack of Article III standing. A fifteen-day bench trial commenced, after which the district court issued a 130-page opinion in which the district court “found that Harvard had met its burden of showing its admissions process did not violate Title VI.”

The First Circuit panel found that SFFA has standing to bring the lawsuit, contrary to the assertion made by Harvard. Specifically, Harvard argued that the organization lacked standing because “it is not a ‘genuine’ membership organization as required by [Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977)].” The panel ultimately reasoned that Hunt’s indicia of membership test does not apply in this case because, on its face, SFFA is a traditional voluntary membership organization. At the time the lawsuit was filed in the district court, the organization “was a validly incorporated 501(c)(3) nonprofit with forty-seven members who joined voluntarily to support its mission.”

Further, the First Circuit panel ruled that Harvard’s limited use of race in its undergraduate admissions process survives strict scrutiny, which applies in the instant case because Harvard accepts federal funds, triggering the application of Title VI of the Civil Rights Act of 1964. The panel first analyzed whether Harvard has a compelling interest in considering race in its undergraduate admissions process. Specifically, the panel looked to the record and found that Harvard “identified specific, measurable goals it seeks to achieve by considering race in admissions.”

The panel also held that Harvard’s use of race is narrowly tailored and consistent with U.S. Supreme Court precedent. Specific to SFFA’s argument that the trial court erred in holding that Harvard did not engage in racial balancing, the panel for the appeals court ruled that the district court “properly concluded that Harvard does not utilize quotas and does not engage in racial balancing.” The panel found the fact that “Harvard’s admitted share of applicants by race varies relatively little in absolute terms for the classes of 2009 to 2018” to be convincing. As to SFFA’s argument that Harvard’s consideration of race is mechanical, the appeals court panel held that SFFA’s argument is not supported by the evidence since Harvard demonstrated that its “use of race in admissions is contextual and it does not consider race exclusively.” Further, because Harvard’s undergraduate admissions program considers race as one part of a holistic review process, the “process does not weigh race so heavily that it becomes mechanical and decisive in practice.”

As to SFFA’s claim that Harvard’s policy intentionally discriminates against Asian Americans, the appeals court panel ruled that Harvard met its burden in disproving intentional discrimination by showing that “it did not discriminate on the basis of race or that its discrimination was not intentional (i.e., it did not act with animus or ‘stereotyped thinking or other forms of less conscious bias’).” The panel looked to the record to strike down SFFA’s three non-statistical evidence arguments. The panel continued on and agreed with the district court that the statistical evidence did not show that an applicant’s personal rating was influenced by race.

Additional Reading

Appeals court rejects affirmative action lawsuit against Harvard, NBC News (November 12, 2020)

Students for Fair Admissions v. President & Fellows of Harvard (Case No. 19-2005)

Opinion in Students for Fair Admissions v. President & Fellows of Harvard

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