“Students for Fair Admissions” is suing Harvard University over its admissions policy, claiming that it unlawfully discriminates against Asian-American applicants. Colleges are allowed to consider race when determining applications, but only on a strictly limited basis set by Supreme Court rulings on the issue.
Students for Fair Admissions claims Harvard penalized Asian-American students based on their race, contrary to civil rights law, by using discriminatory “personal ratings” which systematically disadvantage them in favor of other minority groups.
Title VI of the Civil Rights Act 1964 “prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.”
Edward Blum, the conservative legal strategist, and activist who runs Students for Fair Admissions told Newsweek he thinks many colleges may be acting outside the narrow scope of the law. He also said that “Most observers believe that over 100 colleges are using racial and ethnic preferences in admissions”.
Harvard strongly denies the unlawful consideration of race and is fighting back. According to Harvard’s website, 22.2 percent of its student body is Asian-American compared to 14.6 percent African-American, and 11.6 percent Hispanic or Latino.
But Students for Fair Admissions recently won support from the Department of Justice in its ongoing lawsuit on behalf of rejected Asian-American applicants and their parents, first brought in 2014.
The justice department argues that Harvard has failed to show it does not unlawfully discriminate against Asian-Americans and believes the lawsuit should progress to trial.
The department also said there is evidence that Harvard attempts to “racially balance” its classes, which is potentially unconstitutional, and that the college has never seriously considered race-neutral alternatives to increase campus diversity, as it is legally obliged to do.
Under the Obama administration, guidelines were published for colleges wanting to use race in admissions and remain within the scope of the law. They were jointly issued by the education and justice departments. Guidelines:
- As the Trump administration dumps Obama-era affirmative action guidelines encouraging schools to increase campus diversity by using race as a factor in admissions policies, many wonder what impact it will have on nonwhite students trying to get into their college of choice.
- While ditching the guidance does not change the law, and schools and colleges that want to improve diversity can still use affirmative action despite a lack of federal support, the Supreme Court precedent underpinning such policies could be under threat.
- Justice Anthony Kennedy, who has supported affirmative action in college admissions as constitutional, is retiring on July 31. President Donald Trump’s pick to replace Kennedy could tilt the fine balance of votes on this issue.
- Attorney General Jeff Sessions announced that the guidelines would be scrapped, signaling the administration’s direction on affirmative action, of which it has been highly critical. Sessions said the Obama-era guidelines go beyond what the Supreme Court permits.
In July, the Trump administration scrapped those guidelines, arguing that they actually reached beyond what is permitted by law. The Harvard lawsuit goes to trial in October at a Boston district court. It may end up in front of the Supreme Court.
Unlike previous challenges to the constitutionality of race-conscious college admissions, it would likely face a Supreme Court tilted with a conservative bias.
The retirement of Justice Anthony Kennedy, a liberal-minded supreme justice on many issues, including affirmative action, created a space set to be filled by Brett Kavanaugh, President Donald Trump’s nominee for the vacancy.
Blum told Newsweek that “Our mission is to eliminate the consideration of race and ethnicity in college admissions”.
