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USRESIST NEWS has been following the important legal case Students for Fair Admissions v. Harvard for the past year. In this Brief we recap our earlier coverage and provide an update on an important ruling in the case that was made this week.

Policy Summary: On October 1, 2019 USRESIST NEWS reported that Judge Allison Burroughs of the United States District Court for the District of Massachusetts issued a ruling in the case Students for Fair Admissions v. Harvard. The Students for Fair Admissions (SFFA) filed the case in November 2014. The group had brought previous cases aimed at challenging affirmative action policies at colleges and universities around the country. In the Harvard case, the group alleged that Harvard intentionally discriminated against Asian – American applicants to the school in violation of Title VI of the Civil Rights Act of 1964. That title prohibits discrimination by programs and activities that receive federal funding. After a three week trial conducted at the end of 2018, Judge Burroughs ruled against all of SFFA’s counts and ruled that [1] Harvard’s admissions program was narrowly tailored to serve a compelling government interest, [2] that Harvard did not engage in racial balancing, [3] did not use race as a plus factor, [4] that other race – neutral alternatives were not available and [5] that Harvard did not intentionally discriminate against Asian – American applicants. LEARN MORE

Analysis: After Judge Burrough’s ruling USRESIST NEWS commented  that Students for Fair Admissions Group and its director Edward Blum have wanted nothing but to discredit and dismantle affirmative – action programs around the country. In her ruling, Judge Burroughs was very careful in acknowledging that affirmative – action programs are “not perfect” and not meant to be permanent and showed that the admissions program at Harvard was constructed in a manner that was constitutionally sufficient. The “strict scrutiny” analysis applied to the program demonstrated that Harvard’s admissions program did enough to serve the interests of building a diverse student body and did not do more than was necessary to achieve that goal because race was used in a holistic fashion together with other non – race factors. And in all the remaining counts, she showed how race was never used as a deciding factor such as part of a fixed quota system and that the use of race as a “plus” factor still permitted the admissions committee enough flexibility to consider all other elements of the applicant’s application. In short, race, when used was constitutionally permissible according to the limits set by prior Supreme Court cases.

What also made this interesting was how selective the plaintiffs were in their use of statistical data while ignoring other facts that they found inconvenient to their arguments. As an example, SFFA tried to point to a Harvard recruitment program that sent recruitment letters based on PSAT scores. Those letters showed that Asian – American students received those unsolicited letters if they had a 1370 score while white males would receive those letters if they only received a 1310 on the PSAT. However, Harvard shot back that the letters are an invitation to apply to Harvard. Once a student enters the applicant pool different standards are used when reviewing an applicant’s application. And in another example, Harvard’s applicant rating system exposed SFFA due to the fact that their analysis omitted athletes and children of alumni. This led to accusations of SFFA trying to manipulate their statistics to fit their discrimination narrative. Again, Harvard pushed back and said that an entire review of the applicant pool was necessary and, more importantly, that their forthright statistical analysis showed that being Asian – American did not impact an applicant’s likelihood of getting accepted to the school.

Even though Judge Burroughs clearly demonstrated how this case was permissible within the limits of existing case law, the case will in all likelihood be appealed where it will be hotly debated more on a policy level than a legal one. LEARN MORE, LEARN MORE, LEARN MORE

Update: On November 12, 2020 Circuit Judge Sandra Lynch of the United States Court of Appeals for the First Circuit issued the opinion in the case Students for Fair Admissions, Inc. v. Harvard. The case was being heard on appeal after the trial case in federal district court ruled against SFFA’s claims that Harvard’s admissions policies discriminated against Asian – American applicants. In the opinion, Judge Lynch declared definitively that “under governing Supreme Court law Harvard’s race conscious admissions program does not violate Title VI.” The case was unanimous with a 2 – 0 vote in favor of Harvard. (The appeal was heard by a panel of three circuit judges but Judge Torruella passed away prior to the issuance of the opinion in the appeal).

The opinion is notable because of Judge Lynch’s focus and emphasis on the statistics used in the trial court. During the trial, SFFA was exposed for profferring statistical evidence that was misconstrued as viewed by SFFA, which led to accusations that SFFA was manipulating the evidence. SFFA’s efforts at omitting certain groups of students (athletes, children of alumni) and confusing marketing efforts with application review standards were not convincing at the trial level and not convincing again on the arguments at the appeal.

While SFFA’s evidence has been exposed to be shaky at a trial and appeal level thus far, it is a not very well kept secret that SFFA and its director Ed Blum are aiming for their day in the United States Supreme Court. By bringing the case through the appeals process they are simply following every step in the process in order to reach the high court where they hope that the case will end in a favorable decision for them. With the makeup of the high court now clear with a conservative majority (6 – 3) SFFA is gambling that the recent addition of conservative justices on the Supreme Court will help issue an opinion that will strike down affirmative action policies nationwide despite the benefits that the programs have brought about in terms of boosting diversity and opportunity for disadvantaged minority students. Due to the long time it takes to get a case before the Supreme Court it is unclear when the case will be heard by the high court, if at all, but it seems certain that this contentious issue has an ending that still has to be decided, whether in the courts as a legal issue or in the legislatures as a policy one. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

Harvard Admissions Lawsuit – webpage from Harvard about the case.

American Civil Liberties Union (ACLU) – statement from group on case with link to amicus brief filed by the ACLU on in support of Harvard.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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