On Thursday, November 12, 2020, First Circuit Court of Appeals Judges Jeffrey R. Howard and Sandra L. Lynch upheld the 2019 district court ruling that Harvard University does not discriminate by race in its admission processes. Judge Juan R. Torruella, who died in October, had also been on the panel.

The Appellate Court ruling stated, in part, “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. . . Harvard has demonstrated that it values all types of diversity, not just racial diversity.” The ruling also noted that Harvard has periodically reviewed the consideration of race in its admissions process, has considered race-neutral options, and uses race in a “contextual,” non-exclusive way.

Students for Fair Admissions (SFA), the plaintiff in the case, filed suit in 2014 in district court, alleging that Harvard’s undergraduate admissions process discriminates against Asian Americans and that “racial balancing” is used to maintain the same ratio of races in each entering class at Harvard. Their complaint alleges that race becomes the “defining feature” of an application. They also claimed that Asian Americans were held to a higher standard than other races. The “tip” system, a list of extra factors that could help “tip” a candidate into that year’s class, was claimed to further hold back Asian Americans in favor of whites. All these issues together were alleged as a violation of Title VI of the Civil Rights Act of 1964.

The Justice Department filed an Amicus brief in February of 2020, adding its support to SFA’s cause. Assistant Attorney General Eric Dreiband, of the Civil Rights Division, said “Unconstitutionally partitioning Americans into racial and ethnic blocs harms all involved by fostering stereotypes, bitterness, and division among the American people. The Department of Justice will continue to fight against illegal race discrimination.”

SFA’s initial complaint was heard in 2019, and after a 3-week trial, district court judge Allison Burroughs decided in favor of Harvard. She cited the benefits of diversity. She also wrote that race is still an important factor to be considered in the admissions process.

In 2016, the Supreme Court issued a decision in the case of Fisher v. University of Texas at Austin, in which a similar issue was under the microscope. The University of Texas’ admissions practices were found to be appropriate, and the Supreme Court decision provided these requirements for race to be included in the admissions process:

1. A university may not consider race unless it shows that its purpose is both constitutionally permissible and substantial, and that race classification is required to achieve that purpose.

2. When a university chooses to pursue student body diversity, this is an “academic judgment” that is, nevertheless, still accountable to the justice system.

3. The school bears the burden of showing that the use of race in its decision-making is narrowly tailored to achieve permissible goals, and that “‘available’ and ‘workable’ ‘race-neutral alternatives’ do not suffice.”

The federal appeals panel held that Harvard’s use of race met the “narrowly tailored” criteria and was consistent with Supreme Court precedent.

One of the quieter elements of this dispute is that in order to receive federal funding, an institution like Harvard (and Yale, against whom the Justice Department filed suit for discriminatory admissions practices in October 2020) expressly agrees that they will comply with Title VI. A 2017 report shows that Harvard received $550.5 million in federal funds that year. The Justice Department’s 2020 press release about its suit against Yale states that Yale receives over $600 million annually in federal funds.

The head of SFA, Edward Blum, admitted his disappointment at the appellate court ruling, but also said the case will continue to the U.S. Supreme Court. SFA will ask that body to “end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities.”

Blum’s group has also filed an anti-affirmative action suit against the University of North Carolina. That trial began the same week the circuit court’s decision was issued.

Several states do not allow race to be considered for applicants to public universities. California voters just refused to repeal a ban on the use of race in public university admissions in November. The politics of the issue cannot be discounted. Judge Burroughs was an Obama appointee; Judge Lynch, a Clinton appointee; and Judge Torruella, a Reagan appointee. The Supreme Court that will hear this case is now a 6-3 conservative bench.

In contrast with Blum’s apparent view that colleges and universities are engaged in racial profiling, Harvard spokesperson Rachael Dane gave a statement that included these words:

“Today’s decision once again finds that Harvard’s admissions policies are consistent with Supreme Court precedent, and lawfully and appropriately pursue Harvard’s efforts to create a diverse campus that promotes learning and encourages mutual respect and understanding in our community. As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity.”