Harvard goes to court Monday to fight a lawsuit claiming it illegally limits the number of Asian-Americans it accepts. The suit, grinding on since 2014, seeks to stop it from considering race and may reach the Supreme Court, where Justice Brett Kavanaugh could tip the balance against affirmative action in college admissions for decades to come.
The case, which is being heard without a jury in federal court in Boston by Judge Allison Burroughs, was filed by Students For Fair Admissions, a group led by affirmative action opponent Edward Blum. It accuses Harvard of engaging in “racial balancing.” Admission of Asian-American students, who often have perfect grades and test scores, is capped through vague and manipulable “personal” and overall ratings, SFFA contends, while other minorities are favored.
Harvard argues that race is just one factor in its calculus, an approach allowed by the Supreme Court, and that without it the school couldn’t provide the educational benefit of a diverse student body, also approved by the court.
Blum is “going back to the basics in suing Harvard,” Elise Boddie, former director of litigation for the NAACP Legal Defense & Education Fund and a professor at Rutgers Law School, said in an interview. She noted that in the 1978 Bakke decision striking down racial quotas at a University of California medical school, Justice Lewis Powell praised Harvard for using race as just one factor among many.
“It attracts a lot of attention,” Boddie said, “because if Harvard goes down, we have to worry about the chilling effect a loss will have on other colleges and universities.”
Blum declined to comment on the case.
Four-Decade Attack
The use of race in U.S. college admissions has been under attack since the court upheld affirmative action without quotas in Bakke. Now, a flurry of assaults on the liberal ideal threatens to deliver the most decisive blow in years. In addition to SFFA’s lawsuit -- and a separate suit arguing that Harvard and New York universities illegally use race and gender in selecting law students for their top academic journals -- the U.S. Department of Justice has joined the battle.
It filed a statement of interest in the Harvard case in August, alleging that the admissions process was “infected with racial bias” and that public funds, which the college draws, shouldn’t be used to “finance the evil of private prejudice.” The Justice Department is also probing possible bias in admissions at Harvard and Yale universities and has removed guidelines from the Obama administration that urged schools to take race into account. Under Barack Obama, the government investigated and dismissed complaints about discrimination against Asian-Americans.
It all adds up to a new, and possibly dark, day in American higher education, said David Bergeron, a senior fellow at the liberal Center for American Progress, who worked with the U.S. Department of Education for 35 years specializing in higher education.
Kavanaugh Factor
“Having Kavanaugh on the Supreme Court really does change the likelihood that some precedents will be overturned,” Bergeron said. That dangling threat will not only leave institutions and applicants “in a state of confusion” in coming years but also cast doubt on whether students already accepted under affirmative action “‘deserve’ to be there,” he said. “There’s a significant negative consequence to that.”