Justice Department backs appeal in Harvard affirmative action lawsuit

Dive Brief:

• The U.S. Department of Justice is backing an appeal against Harvard University, pushing a federal appeals court to reverse a ruling that found the institution’s admissions policies are not explicitly discriminatory against Asian American applicants. 

• The Justice Department, along with a handful of advocacy groups, filed amicus briefs on Tuesday supporting the appeal by the anti-affirmative action organization Students for Fair Admissions (SFFA), which first sued Harvard in 2014.

• The case against the Ivy League school is highly watched, as law pundits have said it could reach the Supreme Court and destroy long-standing affirmative action admissions practices in higher ed.

Dive Insight:

With the support of the Justice Department, SFFA’s appeal has new momentum. In a statement Tuesday, the agency blasted Harvard’s admissions processes as a violation of Supreme Court precedent and federal civil rights law.

It pointed to Harvard admissions statistics cited in court documents. More than a third of Hispanic students and more than half of African American students admitted to the university “would most likely not be admitted in the absence of Harvard’s race-conscious admissions process,” the court filings state. 

The department said these “race-based bonuses” disadvantage Asian American applicants.

Among the groups that also filed briefs supporting the appeal are libertarian law firm Pacific Legal Foundation, conservative think tank Center for Equal Opportunity, and the Greater New York chapter of the Chinese American Citizens Alliance.

Harvard declined Education Dive’s request for comment, but a spokesperson provided a statement the university released after SFFA appealed the court’s ruling in the fall. It says that Harvard “does not discriminate on the basis of race in its admissions process” and that its “pursuit of a diverse student body is central to its educational mission and consistent with longstanding Supreme Court precedent.”

Judge Allison Burroughs, of the U.S. District Court in Massachusetts, determined last fall that while Harvard’s admissions processes are “not perfect,” the court would “not dismantle a very fine admissions program that passes constitutional muster.”

Her ruling followed a grueling three-week trial in which SFFA argued that Asian American students were held to a higher standard to gain entry to the university. Observers predicted Harvard might be vulnerable in the case, given that documents made public ahead of the trial suggested that the university was aware its admissions practices were harmful to Asian American applicants.

Burroughs’ opinion references that Asian American students were admitted to Harvard at lower rates (between 5% and 6%) from the classes of 2014 through 2017, compared to white applicants (between 7% and 8%).

Nevertheless, she sided with the university. 

SFFA immediately appealed the decision to the United States Court of Appeals for the 1st Circuit, setting up a possible Supreme Court challenge that could reshape affirmative action policies at colleges nationwide. 

The last time the Supreme Court weighed in on affirmative action was a case decided in 2016, Fisher v. University of Texas, which upheld race-sensitive admissions at the state’s flagship institution, UT Austin. 

At the time, the country’s top court did not have a conservative majority, as it does now with the addition of Associate Justice Brett Kavanaugh. Supporters of affirmative action fear that with the court’s new political makeup, it could strike down policies that have benefited historically marginalized groups. 

Harvard’s is not the only legal battle over affirmative action being waged in the U.S. SFFA once again sued UT Austin last year, as well as the the University of North Carolina at Chapel Hill over their admissions processes. The Justice Department has been investigating Harvard and Yale universities over their practices.

And last year, voters in Washington state rejected a referendum that would have restored affirmative action there.