Why the Harvard Affirmative Action Case is Different than Others

The Harvard affirmative action case is a familiar story with a new cast of characters ( Image )

The Harvard affirmative action case is a familiar story with a new cast of characters (Image)


Last Tuesday, after a closely watched legal battle between Harvard University and Students for Fair Admission, a federal judge ruled that Harvard does not discriminate against Asian American applicants. While the ruling marks a victory for Harvard, their battle with litigation has hardly ended. SFFA president and long-time conservative political operative Edward Blum said in a statement that “SFFA will appeal this decision to the First Court of Appeals and, if necessary, to the U.S. Supreme Court.” 

In her 130-page ruling, United States District Court Judge Allison D. Burroughs found there was no evidence of intentional and explicit discrimination based on race. SFFA had argued that Asian American applicants consistently ranked lower on qualitative and subjective judgments of character. Although statistics provided by SFFA indicated this trend, Burroughs concluded that the disparities were minimal and did not reflect any organized effort to artificially deflate an applicant’s favorability. She wrote: “[the] statistics themselves are alone not enough… In other words, although the statistics perhaps tell ‘what,’ they do not tell ‘why,’ and here the ‘why’ is critically important.”

The Harvard case is the latest iteration of legal challenges to affirmative action. For the last four decades, the judiciary has consistently ruled in favor of race-conscious college admissions, and the justification has remained essentially the same: race can be a factor in the “holistic review” of an individual's application because there are educational benefits that stem from a diverse student body. 

The first significant lawsuit against race-conscious college admissions was in 1978, when Allan Bakke was rejected from UC Davis Medical School twice despite a high GPA and test scores, as well as being a captain in the Marine Corps and working as an engineer for NASA before applying. Bakke sued the university, alleging that it had violated the Equal Protection Clause and the Civil Rights Act of 1964 by favoring one race over another. The split Court both upheld affirmative action and outlawed specific racial quotas. 

In the following decades, several cases have followed the formula established by Regents of the University of California v. Bakke. A white applicant is rejected from a university. They allege that the university is accepting under-qualified Black and Hispanic students at the expense of white students and argue that racial preference violates the Equal Protection Clause. After years of maneuvering through the thicket of our legal system, the case appears before the Supreme Court, and in a narrow consensus, the Court sides with the university, but concedes that some element of the admissions process is unconstitutional.

This was the case in 2004, when Barbara Grutter sued the University of Michigan after her law school application was rejected. This was the case in 2008, when Abigail Fisher sued the University of Texas at Austin after her undergraduate application was rejected. This was the case again in 2016, when Fisher’s case reappeared before the Supreme Court. Not coincidentally, Fisher was under the legal guidance of SFFA President Edward Blum in the 2016 trial.

However, the Harvard case is not like its predecessors. 

The suit against Harvard marks a major deviation from the legal strategy employed by previous lawsuits looking to abolish racial preferences in college admissionsit is not about white applicants. SFFA argued that Black and Hispanic applicants were being admitted at the expense of another minority group, Asian Americans. This shift, legal experts speculate, could be the new element needed to convince a newly conservative Supreme Court to reverse decades of precedent.

Edward Blum is also responsible for an admissions lawsuit against UNC-Chapel Hill. In a brief filed in January 2019, SFFA claimed that “UNC’s use of race is the opposite of individualized; UNC uses race mechanically to ensure the admission of the vast majority of underrepresented minorities.” The case is currently awaiting trial before the U.S. District Court in Winston-Salem.

These two concurrent lawsuits appear to be Blum’s attempt to test the waters. The UNC case follows the traditional route of focusing on white applicants, but the Harvard case presents a new element of minority against minority discrimination. It remains unclear how this two-pronged legal offensive will end. If even one of these two cases makes its way to the Supreme Court, the fate of affirmative action rests on the court’s findings.