Petition for a Writ of Certiorari: “If [the First Circuit] decision stands, then universities can use race even if they impose racial penalties, make backward-looking racial adjustments, ignore critical mass, eschew sunset provisions, and identify no substantial downsides to race-neutral alternatives. The Court’s precedent does not allow this unbridled use of race.”
A group called Students for Fair Admissions (SFFA) sued Harvard University alleging discrimination against Asian-Americans in admissions through the use of soft factors.
We covered the lawsuit since it’s inception in 2015, through the trial court decision favoring Harvard, and onto the appeal in which the Trump administration supported the Asian American students, and then the appeals court ruling in Harvard’s favor:
- Complaint Says Harvard Discriminates Against Asian-Americans (2015)
- New Harvard President Rejects Claims of Discrimination Against Asian-Americans (2018)
- Federal Judge Sides With Harvard in Discrimination Case Brought by Asian Applicants (2019)
- Trump administration sides with Asian American students in discrimination suit against Harvard (2020)
- Appeals Court upholds Harvard’s discrimination against Asian-Americans (2020)
We covered the appeal decision in detail, noting that there was no real dispute that Harvard discriminated, as the appeals court acknowledged:
A race-conscious admissions program is not narrowly tailored if a university uses it despite workable race-neutral alternatives. See Fisher I, 570 U.S. at 312. The district court found that eliminating race as a factor in admissions, without taking any remedial measures, would reduce African American representation at Harvard from 14% to 6% and Hispanic representation from 14% to 9%. SFFA II, 397 F. Supp. 3d at 178. It found that at least 10% of Harvard’s class would not be admitted if Harvard did not consider race and that race is a determinative tip for approximately 45% of all admitted African American and Hispanic students. Id.
The appeals court found, however, that Havard so far had couched such discrimination in the legally necessary verbiage under existing Supreme Court jurisprudence:
Harvard has identified specific, measurable goals it seeks to achieve by considering race in admissions. These goals are more precise and open to judicial scrutiny than the ones articulated by the University of Texas and approved by the Fisher II majority….
These goals make clear that Harvard’s interest in diversity “is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” but “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Parents Involved, 551 U.S. at 722 (quoting Grutter, 539 U.S. at 324-25). Race is one piece of Harvard’s interest in diversity. It is “considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.’” Id. at 723 (quoting Grutter, 539 U.S. at 330). …
Harvard has sufficiently met the requirements of Fisher I, Fisher II, and earlier cases to show the specific goals it achieves from diversity and that its interest is compelling….
SFFA has just filed a Petition for Writ of Certiorari (pdf.) asking the Supreme Court to take the case, and raising the following Questions for review:
1. Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?
2. Title VI of the Civil Rights Act bans race-based admissions that, if done by a public university, would violate the Equal Protection Clause. Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives?
Here’s is part of the introduction as to why the Supreme Court should hear the case:
But given Harvard’s flagrant violations of Title VI, it fails strict scrutiny even under Grutter. Harvard’s mistreatment of Asian-American applicants is appalling. Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less likable and kind. This is reason enough to grant review. That Harvard engages in racial balancing and ignores race-neutral alternatives also proves that Harvard does not use race as a last resort. All of this makes intervention that much more urgent.
This case is the kind of important individual rights dispute that this Court has not hesitated to hear. Review thus would be warranted if the defendant were any university subject to Title VI. But it isn’t just any university. It’s Harvard. Harvard has been at the center of the controversy over ethnic- and racebased admissions for nearly a century. The Court should grant certiorari.
The Petition ended with this point:
The First Circuit violated this Court’s precedent in several important ways. If its decision stands, then universities can use race even if they impose racial penalties, make backward-looking racial adjustments, ignore critical mass, eschew sunset provisions, and identify no substantial downsides to race-neutral alternatives. The Court’s precedent does not allow this unbridled use of race. If it does, this Court should be the one to say so. And if it does, the precedent is not worth keeping.
The Harvard Crimson quotes a Harvard law professor suggesting the Supreme Court may not take the case because it is a private university:
Harvard Law School professor Noah R. Feldman ’92 told the Crimson in January he believes it is “pretty unlikely” the Supreme Court will review the case. Feldman said past Supreme Court cases involving race in admissions have involved public universities, cases in which the constitutional issue is more clearly presented.
It will be interesting to see if the Supreme Court takes the case, and whether it chooses finally to end racial discrimination in admissions.DONATE
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