Harvard Ruling May Offer ‘Roadmap’ for Other Affirmative Action Cases

Tuesday’s ruling upholding the legality of Harvard’s race-conscious admissions process could foreshadow decisions in other cases challenging affirmative action programs at colleges and universities across the country, according to legal experts.

Harvard is not the only university currently facing a challenge to its admissions policies. The plaintiff in Harvard’s case — anti-affirmative action group Students for Fair Admissions is also the plaintiff in a pending lawsuit against the University of North Carolina, Chapel Hill. That case challenges the legality of the school’s admissions policies, but unlike the complaint against Harvard, it alleges that UNC discriminates against white applicants rather than Asian American applicants.

District Judge Loretta C. Biggs of the Middle District of North Carolina ruled Monday to reject the parties’ cross-motions for summary judgement, indicating that the case will proceed to trial. Biggs also granted the plaintiff’s motion to seal some documents.

Kimberly West-Faulcon, a professor at Loyola Law School, said in an interview that though the Harvard lawsuit might provide a framework for other plaintiffs, defendants, and judges, idiosyncrasies of individual institutions’ race-conscious admissions policies make it difficult to predict whether other academic institutions will succeed in defending their procedures against allegations of discrimination.

“In some ways, it probably gives the court and the litigants in the UNC case a bit of a roadmap because there are similarities in their policies,” West-Faulcon said. “But, there will also be some variation in how they approach it because of the demographics that are going to differ between those two universities, and how much SFFA is making the UNC case a case about the negative implication that considering race has on white applicants.”

In May, SFFA also re-filed a complaint against the University of Texas, Austin that contained essentially the same arguments as a lawsuit dismissed in 2017. There, SFFA alleges the school’s admissions process violates the Texas Constitution. The group also created a website to recruit student members who believe they were rejected by the University of Wisconsin, Madison as a result of their race.

SFFA is not alone in fighting against race-conscious admissions in higher education. Richard H. Sander — a law professor at the University of California, Los Angeles who argues affirmative action negatively impacts minority students’ academic outcomes — is suing the University of California system for admissions data about race. Sander said in a statement when he filed the suit that though the system appeared to adhere to the state’s race-neutral admissions requirement for several years, he was concerned that this was not the case after 2007.

Peter McDonough, general counsel at the American Council on Education, said in an interview that the Harvard decision may assuage other colleges’ and universities’ fears about using race-conscious admissions.

“The intensity of the win for Harvard should give comfort to institutions that truly believe that it's appropriate for them to consider race and ethnicity in their admissions processes,” McDonough said.

McDonough said in an interview that the specificity of the Harvard ruling also sets a standard for the quality of judgments in future affirmative action cases.

“The rigor of Judge Burroughs’s decision and the obvious intensity of analysis will tell a judge anywhere in the country that’s considering a case like this that you better be bringing your A-game to writing the decision after you’ve presided over the trial,” he said.

Correction: Oct. 3, 2019

A previous version of this article incorrectly stated Peter McDonough's middle initial.

—Staff writer Camille G. Caldera can be reached at camille.caldera@thecrimson.com. Follow her on Twitter @camille_caldera.

—Staff writer Delano R. Franklin can be reached at delano.franklin@thecrimson.com. Follow him on Twitter @delanofranklin_.

—Staff writer Samuel W. Zwickel can be reached at samuel.zwickel@thecrimson.com. Follow him on Twitter @samuel_zwickel.