A Lawsuit by Asian-American Students Against Harvard Could End Affirmative Action as We Know It

The trial over the use of race in admissions at Harvard University — brought on behalf of Asian-American students — only started on Monday, but experts already anticipate it will become a landmark case, affecting diversity in higher education and affirmative action policies across the country.

The lawsuit — brought in federal district court in Boston — alleges that Harvard discriminates against Asian-American applicants, holding them to a higher standard than students of other races and using an illegal racial quota system. Harvard denies that any of its practices are discriminatory and has defended its “holistic” admissions process.

The case has fueled a longstanding debate over affirmative action policies that traditionally benefit African-American and Latino students in an effort to offset centuries of racial discrimination. While previous high-profile affirmative action cases have featured white students, this challenge positions minority students as the plaintiffs.

Asian-Americans — about 6% of the U.S. population — made up nearly 23% of Harvard’s most recent class of admitted students, while African American students made up 15% and Hispanic or latino students made up 12%. Harvard admitted a majority of nonwhite students for the first time two years ago.

Meanwhile, a newly conservative Supreme Court serves as a backdrop, increasing the chance that previous rulings upholding affirmative action could be overturned if the case makes it to the highest court, experts say.

“The current composition strongly suggests that affirmative action’s days are numbered,” says Justin Driver, a University of Chicago law professor who wrote about how court cases have shaped public education in his new book, The Schoolhouse Gate.

The case was brought by Students for Fair Admissions, a group founded by Edward Blum, a conservative activist who opposes all race-based admissions policies and has brought several other cases challenging affirmative action, including Fisher v. University of Texas, which resulted in a 2016 ruling that the university’s race-conscious admissions program was legal under the Equal Protection Clause.

Critics have accused Blum of “exploiting” Asian-American students in pursuit of an anti-affirmative action agenda that could ultimately harm African-American and Latino students. Surveys show that a majority of Asian-Americans support affirmative action policies, though support among Chinese-Americans decreased to 38% this year, according to a survey by APIAVote and AAPI Data.

On Sunday, opposing protest groups rallied in Boston and Cambridge, both for and against the Harvard lawsuit, carrying signs that said: “I Am Asian-American. I Have a Dream Too,” or “Asians Will Not Be Tools for Your White Supremacy.”

While Adam Mortara, a lawyer representing Students for Fair Admissions, said in opening arguments Monday that “the future of affirmative action is not on trial here,” Blum has been explicit that the group’s goal is “to end racial classifications and preferences in college admissions” — something proponents of affirmative action warn would “deepen racial inequity in higher education.”

“This trial is about what Harvard has done and is doing to Asian-American applicants, and how far Harvard has gone in its zeal to use race in the admissions process,” Mortara said Monday.

An attorney representing Harvard countered that student diversity, which he described as key to the school’s mission, is not possible without affirmative action, and he said race is never considered negatively in applications. “Harvard cannot achieve its educational goals without considering race,” attorney Bill Lee said, according to the Boston Globe.

“Race-conscious admissions is a limited tool, but it’s still a tool needed to recruit and retain racially diverse student bodies,” says Julie Park, an associate professor of education at the University of Maryland, who studies the experience of Asian-American students, racial diversity and affirmative action. Park also served as a consulting expert in the case on the side of Harvard. “I think if this case or another case leads to a nationwide ban on race-conscious admissions, everyone is going to lose out, including Asian-Americans.”

The Harvard suit is the first high-profile case to involve Asian-American plaintiffs and the first to place a spotlight on one of the top private universities in the country. “We’re dealing here with perhaps the most elite academic institution in the country, and that raises the temperature,” Driver, the University of Chicago law professor, says.

Harvard was also previously identified as a model for affirmative action by former Supreme Court Justice Lewis Powell. In the 1978 case Regents of the University of California v. Bakke, Powell became the pivotal vote in both striking down the admissions policy of University of California for using racial quotas, and then upholding affirmative action more broadly, pointing to Harvard as a good example because it considered race as a “plus.”

But attorneys representing Students for Fair Admissions, whose lawsuit received support from the Trump Administration, will spend the next three weeks arguing that Harvard uses what amounts to a racial quota system, manipulating the admissions process to “[achieve] essentially the same racial balance year over year.” They have focused on findings that Harvard gives a lower “personal rating” score to Asian-American applicants as a group, who otherwise outperform other racial groups in academics and extracurriculars.

“Race and ethnicity should not be a factor when a student applies to a university like Harvard or the University of North Carolina or the University of Texas, or any university,” Blum said in prepared remarks at a rally the day before the trial started. “In a multi-racial, multi-ethnic nation like ours, the admissions’ bar cannot be raised for some races, and lowered for others.”

“Regardless of the outcome of this trial,” he added, “the movement to end racial classifications and preferences in college admissions will not end.”