• Bloomberg


Harvard University can continue to consider race in its admissions decisions, after a federal appeals court ruled that it isn’t intentionally discriminating against Asian Americans and the policy doesn’t violate the U.S. Constitution.

The U.S. Court of Appeals in Boston on Thursday ruled that race was an integral factor in the nation’s oldest college’s mission to educate “the citizenry and citizen leaders for our society” beyond considering only perfect grades and test scores.

The two-judge panel noted that for each class of 1,600 freshman, the school receives about 35,000 applications and can’t admit all who would succeed academically. “Harvard has determined that academic excellence alone is not sufficient for admission,” the panel said, but seeks applicants who are “compelling candidates on many dimensions.”

Still, the legal battle, which comes amid a fraught national reckoning on race, is far from over. The anti-affirmative action group Students for Fair Admissions, which sought to force Harvard to abandon the practice, said on Thursday that it would ask the U.S. Supreme Court to reverse the ruling and toss out decades of precedent.

SFFA President Edward Blum, a longtime foe of affirmative action, said “hope is not lost.”

“This lawsuit is now on track to go up to the U.S. Supreme Court where we will ask the justices to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities,” Blum said in a statement.

It’s unclear whether the high court, now with a 6-3 conservative majority, will agree to revisit the issue by taking up the appeal, or whether it will wait for a second case with a different outcome. Students for Fair Admission had sued both the University of Texas and the University of North Carolina. A federal judge in Winston-Salem began hearing the UNC case Monday.

President Donald Trump’s Justice Department sued Yale University in October over its consideration of race. The Justice Department also joined the Harvard lawsuit and sided with SFFA. The myriad cases being brought are seen as an effort to get a reconfigured high court to review affirmative action again.

During oral arguments in September, the appeals judges noted that for more than 40 years, the Supreme Court has allowed colleges to consider race as a factor in pursuing diverse student bodies as long as they do so within prescribed bounds.

Harvard President Lawrence Bacow said “the consideration of race, alongside many other factors, helps us achieve our goal of creating a student body that enriches the education of every student.” He called diversity “a pathway for excellence for both Harvard and the nation.”

“We will continue to defend these principles and our admissions process all the way to the Supreme Court, if necessary,” Bacow said.

SFFA had argued that Harvard engaged in “racial balancing,” penalizing Asian American applicants while giving undue consideration of race when considering Black and Latino applicants. The group claimed Harvard is prohibited from using race in its admissions process unless its use can withstand a court’s “strict scrutiny” by advancing a “compelling interest” and being “narrowly tailored” to achieve that goal.

But in its 104-page ruling, the two-judge panel said SFFA hadn’t presented a single Asian American applicant who claimed Harvard discriminated against them. To the contrary, the court pointed out that several former and current students — including some Asian American students — testified in favor of race-conscious admissions at the trial.

The panel also noted that the Supreme Court has ruled that “attaining student body diversity may be a compelling interest” and found that Harvard’s program was sufficiently narrow because it doesn’t use quotas or engage in “racial balancing,” among other factors.

“Enabling students to understand, relate to, and learn from people of different backgrounds is one of the main goals of Harvard’s race-conscious admissions program,” the panel said. “Harvard has demonstrated that it values all types of diversity, not just racial diversity. Harvard’s use of race in admissions is contextual and it does not consider race exclusively.”

Nor is the Ivy League college unique in this effort, the panel found. Intel Corp., Apple Inc. and Amgen Inc. were among more than a dozen companies that filed briefs supporting Harvard, saying they depend on diverse college student bodies in their hunt for “the next superb employee.”

“Many other colleges and universities consider an applicant’s race, in addition to many other factors, in admissions,” the appeals court wrote. “And the business community has communicated its interest in having a well-educated, diverse hiring pool both in this case and in the prior governing Supreme Court cases.”

Yale, which is defending against the case brought by the Justice Department, said it was “pleased” with the ruling.

“The court today stated ‘under governing Supreme Court law Harvard’s race-conscious admissions program does not violate Title VI.’ Yale’s admissions practices, while not identical to Harvard’s, are scrupulously designed to adhere to the same Supreme Court law,” said Karen Peart, a spokeswoman for Yale.

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