Harvard Prevails in Admissions Appeal, Setting Up High Court Showdown

BOSTON (CN) — Harvard University’s use of race in admissions doesn’t illegally discriminate against Asian-Americans, the First Circuit held Thursday. 

A nonprofit group supported by the U.S. Justice Department had claimed that Harvard’s assignment of a “personal rating” to each applicant based on subjective criteria was a covert way of increasing acceptances for Black and Hispanic students while lowering them for Asians, a group they say tend to score higher on academics and other factors.  

It’s statistically unlikely that “Asian-Americans have worse personalities” in such a very large number of cases, attorney William Consovoy of Consovoy McCarthy told the court at oral argument earlier this fall. 

In Thursday’s ruling, however, U.S. Circuit Judge Sandra Lynch wrote for the Boston-based court that, when it comes to race, Harvard can pay “some attention to numbers" as long as it doesn’t impose “a rigid quota."

Here, “the amount by which the share of admitted Asian-American applicants fluctuates is greater than the amount by which the share of Asian-American applicants fluctuates,” the 104-page opinion states. 

That’s also true for Blacks and Hispanics, and is “the opposite of what one would expect if Harvard imposed a quota,” continued Lynch, who is a Clinton appointee. 

The plaintiffs plan to appeal, said Edward Blum, president of the nonprofit that brought the case, the 20,000-member Students for Fair Admissions.

“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 an interview.

The case is significant because it’s the first appellate ruling in a group of high-profile lawsuits challenging admissions policies as harming Asians, and it’s a rebuke to the federal government. 

The Justice Department filed a similar suit last month against Yale University claiming that its policies discriminated against Asians.  And Students for Fair Admissions has also sued the University of North Carolina. That lawsuit claims that an out-of-state Asian male who had a 25% chance of admission to UNC would have a 99% chance of admission if he had exactly the same application but were Black.  

The Wall Street Journal recently speculated that Justice Amy Coney Barrett, the only member of the high court who didn’t go to law school at Harvard or Yale, might tip the court’s balance away from racial preferences. 

Harvard’s personal ratings have a checkered history. Prior to 1920, Harvard admitted students based on an exam, but it introduced the personal-rating  system in an effort to limit the number of Jews at the school.  

Arguing before the First Circuit on behalf of the government, Assistant Attorney General Eric Dreiband called the personal rating “very suspicious.”

“Harvard admissions officers are sitting in their offices assigning ratings based on criteria like courage and integrity and somehow, in some mysterious and unexplained way … Asian-American applicants are being rated as having less courage and less integrity despite the fact that based on the other metrics, academics and extracurriculars, they are the highest achievers,” Dreiband said. 

But Lynch wrote that Harvard could take race into account so that it can better educate students, train future leaders, produce “new knowledge stemming from diverse outlooks,” and equip “its graduates and itself to adapt to an increasingly pluralistic society.”  

Lynch additionally found that the statistical evidence didn’t prove Harvard considered race in a rigid way or that it amounted to a “mechanical plus factor.” She distinguished the Harvard case from one where the Supreme Court said the University of Michigan couldn’t base admissions on a point system and then automatically give 20 extra points to anyone who belonged to a minority. 

“Harvard rejects more than two-thirds of Hispanic applicants and slightly less than half of all African-American applicants who are among the top 10% most academically promising,” she wrote. While the Supreme Court case “precludes programs where race is decisive for minimally qualified candidates ... Harvard's admissions process is so competitive that race is not decisive [even] for highly qualified candidates.” 

Lynch also said that alternative, nonracial approaches to increasing diversity — such as increasing financial aid, admitting more low-income students, and eliminating preferences for athletes and children of faculty and alumni — either wouldn’t have a significant effect or would harm Harvard in other ways. 

U.S. Circuit Chief Judge Jeffrey Howard, a George W. Bush appointee, joined the opinion. The third judge on the panel, Juan Torruella, heard arguments in the case but died two weeks ago.  

The case drew widespread interest. Harvard was supported by amicus briefs from 16 states, 15 other colleges and universities, 14 corporations and 41 higher education organizations, among others.

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