In Asian Discrimination Appeal, Harvard Talks out of Both Sides of Its Mouth

School claims efforts to racially balance students don't constitute racial quotas

(Glen Cooper/Getty Images)
May 20, 2021

Harvard University this week urged the Supreme Court to reject a challenge to its affirmative action policies, but its brief is more likely to aggravate the conservative majority than pacify its well-documented hostility to race-conscious policies.

Students for Fair Admissions, the advocacy group behind the lawsuit, alleges that Harvard discriminates against Asian applicants, and their petition calls on the justices to demolish the legal foundations of affirmative action. Harvard urged the justices not to get involved, saying the petition doesn’t meet the Court’s usual criteria for taking cases.

The Supreme Court last considered affirmative action in a 2016 case, Fisher v. University of Texas. In that case, a four-justice majority turned back a challenge to UT’s race-conscious admissions policy. The conservative dissenters zeroed in on the vagueness of UT’s goals and the operational details of its program to launch a broader critique of the Court’s decision.

Harvard’s response to the Students for Fair Admissions petition relies on the same cagey explanations that have fed criticism of the Court’s affirmative action precedents for decades. The university’s failure to correct those weaknesses bodes poorly for its odds of keeping the case out of the High Court.

One such example is Harvard’s description of a type of memo admissions officers regularly circulate to track the characteristics of the applicant pool. The plaintiffs allege these memos are one tool Harvard uses to engineer the racial make-up of each incoming class, a practice the Supreme Court has long forbidden. Harvard denies that it engages in racial balancing, even as it admits to paying careful attention to the memos and course-correcting when those memos show aberrant outcomes.

"The information is not used to pursue racial quotas or balance," Harvard’s brief says of the memos. "It may be used to recognize declines in representation of admitted students with certain characteristics, in which case the committee may give additional attention to applications from students with those characteristics to ensure they were fairly considered."

In other words, Harvard says its admissions committee does not balance the incoming class based on race. It merely tracks all sorts of demographic information about applicants and responds as a body when it detects that a particular group is undergoing "declines in representation." It’s the kind of thin and suspect distinction that has animated judicial critics of affirmative action for decades.

And Harvard’s explanation seems to cop to racial balancing in any event. The baseline against which "declines in representation" are measured is foggy and suggests Harvard is using quotas, which the Court has forbidden.

Harvard’s brief is weighted with other contradictions, as when it promises that race is not a dispositive factor for applicants, but warns its campus would become a racial monolith, the Cambridge of yesteryear, if its policies are enjoined.

"As the district court found, moreover, race never becomes ‘the defining feature’ of applications," Harvard’s brief reads. But "if Harvard were to abandon race-conscious admissions," it adds just one paragraph on, "African-American and Hispanic representation would decline by nearly half."

U.S. District Judge Allison Burroughs pegged those claims to precise figures in a decision upholding Harvard’s practices.

"Although always considered in conjunction with other factors and metrics, race is a determinative tip for approximately 45% of all admitted African-American and Hispanic applicants," Burroughs wrote. "At least 10% of Harvard’s admitted class, including more than one-third of the admitted Hispanics and more than half of the admitted African Americans, would most likely not be admitted in the absence of Harvard’s race-conscious admissions process."

Harvard’s best argument is that Students for Fair Admissions is asking the Court to engage in pure error correction. The Supreme Court usually gets involved with cases only when multiple courts disagree over the legal question at issue. It won’t step in just because the petitioner feels a lower court got something wrong. For the moment, there’s no split in the lower courts over affirmative action.

The Court’s decision to hear marquee cases on abortion and gun rights in its next term may also give Harvard a boost. Some of the justices may feel they’re courting quite enough social controversy for the time being, especially as the threat of court-packing looms. Legal challenges to affirmative action programs at UT and the University of North Carolina are working their way through the courts, so another opportunity to revisit race-conscious admissions is not far off.

All told, Harvard has a shot at putting off the Court for the time being. They could have done it without baiting the conservatives.