A federal judge has ruled that Harvard’s race-conscious admissions policy is constitutional — a long-awaited decision that comes nearly a year after the closely-watched trial over the school’s use of race in admissions began. It now sets the stage for a continued legal battle over the future of affirmative action in higher education.
“The Court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better,” U.S. District Judge Allison Burroughs wrote in a ruling issued Tuesday, rejecting claims that Harvard had discriminated against Asian-American applicants in its admissions process.
The suit — brought by Students for Fair Admissions, which is led by conservative anti-affirmative action activist Edward Blum — argued that Asian-Americans were held to a higher standard than students of other races. Harvard data released during the trial showed that admitted Asian-American students have a higher average SAT score but a lower rate of admission than any other racial group.
Blum — who also brought a suit against the University of Texas at Austin that resulted in a 2016 Supreme Court ruling upholding its affirmative action program— is currently pursuing a similar claim alleging discrimination against Asian-American applicants at the University of North Carolina at Chapel Hill (UNC).
During a trial that stretched into a second set of arguments in February, Harvard denied that its process was discriminatory and argued that considering race as a factor was necessary to boost diversity and expand educational opportunity at a university that has long been predominantly white.
In her ruling, Burroughs echoed that argument, writing that “at least for now, ensuring diversity at Harvard relies, in part, on race-conscious admissions.” She said a diverse campus gives students “the opportunity to know and understand one another beyond race.”
“It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet,” Burroughs wrote.
“Until we are, race-conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship and encourages mutual respect and understanding.”
Before Burroughs issued the ruling, Mitchell Chang — a professor of education and Asian-American studies at the University of California, Los Angeles, who has studied college diversity initiatives — said the decision, alone, is “not going to mean much” to higher education more broadly, but the case could leave a national impact on other universities if it reaches the U.S. Supreme Court.
“What is on balance here, especially in considering admissions, is what counts as discrimination versus the discretion of admissions officers to make decisions that support institutional interests,” Chang told TIME in an interview ahead of the ruling. “There is this interest of the public good — how can institutions contribute to the public good? And part of that is to train a diverse leadership group and give opportunities to a diverse student body, and that’s very, very important for institutions, especially the public ones. So it’s a tricky balance here, and that’s why these cases don’t go away.”
Chang has served as an expert witness on behalf of UNC in the Students for Fair Admissions case against the public university.
A February report by Pew Research Center found that a majority of Americans (73%) say colleges should not consider race or ethnicity in admissions. But critics of the Harvard suit have warned that ending race-conscious admissions will ultimately harm black and Hispanic students, who are already underrepresented at top universities.
This year, as the trial drew national attention, Harvard admitted an incoming freshman class comprised of a record 25.4% Asian-American students — up from 22.7% last year. Asian-Americans make up about 5% of public high school students in the U.S. By comparison, black students made up 14.8% of Harvard’s admitted students this year, and Hispanic students made up 12.4% — though both groups of students make up larger percentages of public school enrollment in the U.S.
The Harvard decision comes amid heightened scrutiny over the fairness of the college admissions process at elite schools in the United States. “It’s making really clear, I think, how warped this idea of going to selective institutions has become,” says Chang.
In March, federal prosecutors announced charges over a widespread scheme in which dozens of wealthy parents bribed college athletic coaches and facilitated cheating on standardized tests to get their children into elite colleges, spending millions of dollars in some cases. The scandal shed light on the kinds of advantages — both legal and illegal — that give wealthy students a leg up in the admissions process.
In April, the medical school at Texas Tech University Health Sciences Center announced it would stop considering race in admissions, based on an agreement with the Department of Education’s Office for Civil Rights. The Trump Administration has also opened investigations into whether Yale and Harvard discriminate against Asian-American students in admissions.
Burroughs’ ruling won’t bring an end to the contentious debate over affirmative action in admissions.
“Students for Fair Admissions is disappointed that the court has upheld Harvard’s discriminatory admissions policies,” Blum said in a statement Tuesday. “We believe that the documents, emails, data analysis and depositions SFFA presented at trial compellingly revealed Harvard’s systematic discrimination against Asian-American applicants.”
He said Students for Fair Admissions will appeal the decision to the First Court of Appeals and to the U.S Supreme Court “if necessary.”
In previous decisions, the Supreme Court has ruled that universities are allowed to consider race as one limited factor in admissions, but could not use a racial quota system. But some legal observers think a newly conservative makeup on the Court could result in a ruling against affirmative action in the future.
“Big-picture-wise, it’s really a fight over the way in which the 14th Amendment in the U.S. Constitution gets to be interpreted in what it means to have equal protection,” Liliana Garces, an associate professor of education at the University of Texas at Austin who studies diversity in higher education, said in an interview earlier this year. “This is a very concerted effort to go back to … the Supreme Court, in its changed composition, with the votes to potentially change that prior interpretation of the Equal Protection Clause.”
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