Affirmative Action Still Being Challenged—Could the College Admissions Process Be in for a Change?

*Evan Raigrodski

Even in 2019, affirmative action in the college admissions process continues to be challenged.  Anemona Hartocollis, Harvard Won a Key Affirmative Action Battle.  But the War’s Not Over, N.Y. Times, (last updated Nov. 5, 2019).  The latest lawsuit brought by the Students for Fair Admissions challenged Harvard University’s admissions practices arguing that the University discriminated against Asian-Americans in violation of the Equal Protection Clause of the Fourteenth Amendment.  See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126 (D. Mass. 2019).  In a decision laid down by Judge Allison Burroughs of the U.S. District Court for the District of Massachusetts, the court held that Harvard’s admissions process and its consideration of race were not discriminatory towards Asian-Americans.  Id. at 203–04.  However, this decision likely will not be the end of this action, as an appeal has already been filed and it has the potential to reach the Supreme Court.  Hartocollis, supra.  With a new conservative majority on the Court, the incorporation of race considerations in college admissions processes may be reconsidered, challenging the precedent set over forty years ago.  See id.

Students for Fair Admissions is led by a man named Edward Blum, who has previously fought against affirmative action in higher education.  Sarah Hinger, Meet Edward Blum, the Man Who Wants to Kill Affirmative Action in Higher Education, ACLU (Oct. 18, 2018, 3:00 PM),  Blum is no stranger to lawsuits against affirmative action entering the arena of the Supreme Court.  See id.  Just three years ago, Blum engineered the lawsuit of Fisher v. University of Texas at Austin, which challenged the University’s race-conscious admissions program.  Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2202 (2016).  The lawsuit argued that the University violated a Caucasian student’s Fourteenth Amendment right to Equal Protection when she was denied admission.  See id.  The Supreme Court held that the University’s admissions program did not violate the Equal Protection Clause because a university has a compelling interest in instituting a race-conscious admissions program to obtain the benefits created by a diverse student body.  Id. at 2210, 2214–15.  However, a university carries the burden of showing that its admissions program is narrowly tailored to advance this interest.  Id. at 2214.

Moreover, the Court found that the Plaintiff’s suggested alternatives and proposals were not “‘available’ [or] ‘workable’ means through which the University could have met its educational goals.”  Id.  For example, the Plaintiff suggested that the University could enhance its outreach efforts to African-American and Hispanic applicants to achieve its goals.  Id. at 2213.  The Court dispelled this notion, saying that the University submitted “extensive evidence” of things it had done to increase outreach efforts—such as increasing its recruitment budget and organizing over 1,000 recruitment events.  Id.  The court found that “none of those efforts succeeded.”  Id.

Thus, the Court upheld the University’s race-conscious admissions program as well as forty years of precedent in affirmative action cases; yet, it also proved why the rulings on these cases may be temporary.  See Hartocollis, supra.  The decision in Fisher was written by Justice Kennedy, a known swing vote.  Id.  Justice Kennedy was considered a centrist, whose vote would often decide which side would win a 5-4 decision.  See id.  However, the dissent, written by Justice Alito and joined by Justice Thomas, stated that the University’s goals to destroy stereotypes, promote cross-racial understanding, and prepare the student body for an increasingly diverse workforce and society were not “concrete and precise” goals.  Fisher, 136 S. Ct. at 2223 (Alito, J., dissenting).  Justice Alito further wrote that, “If a university can justify racial discrimination simply by having a few employees opine that racial preferences are necessary to accomplish these nebulous goals, then the narrow tailoring inquiry is meaningless.”  Id. (citation omitted).

With a new conservative majority on the Court, it will be interesting to see how the Court rules if Students for Fair Admissions is granted certiorari in its case against Harvard.  The Justices could very well take the dissenters in Fisher’s side to hold that universities need to present more concrete and precise goals and that the equal protection analysis must be more critical of affirmative action.  See id.

The district court judge in Students for Fair Admissions took a similar approach to the majority in Fisher.  See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F.Supp.3d 126, 203–04 (D. Mass. 2019).  The court found that Harvard’s admissions process passed the strict scrutiny test for similar reasons the Court in Fisher relied on.  Id. at 203–04.  The court found that Asian-Americans were not unduly burdened and stated that “there is not a statistically significant difference between the chances of admission for similarly situated Asian-American and white applicants.”  Id. at 193.  Further, the Plaintiff’s statistics used to show discrepancies amongst Asian-American and white applicants did not persuade the court.  Id. at 203.  The court said while the statistics “perhaps tell ‘what,’ they do not tell ‘why’ and here the ‘why’ is critically important.”  Id.

Judge Burroughs commented that Harvard could do a better job to safeguard against implicit biases against Asian-Americans.  Id. at 172.  This admission, according to Carl Tobias, a professor of law at Richmond University, could leave an opening for the Plaintiff to make that argument on appeal.  Hartocollis, supra.  However, Tobias thinks it is more likely that the Students for Fair Admissions will focus on overturning Regents of the University of California v. Bakke, which upheld race-conscious admissions (but not racial quotas) as passing the strict scrutiny test.  Hartocollis, supra; see Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315–20 (1978).  The Court, in a 5-4 decision, held that affirmative action in general is allowed under the Constitution.  Bakke, 438 U.S. at 266–67.  Specifically, the Court held that race may be one of a number of factors considered by schools in passing on applications.  Id. at 314.  However, the court held that the University of California’s specific admissions program reserving 16 of 100 places for minority students, to be an illegal racial quota.  Id. at 316.  If Students for Fair Admissions reaches the Supreme Court, this precedent from 1978 will be tested by the new conservative majority.  See Bakke, 438 U.S. 265.  This could change the rules governing race-conscious college admissions processes.

This issue continues to be challenged and is not going away anytime soon.  See Hartocollis, supra.  Edward Blum, the leader of Students for Fair Admissions, currently has another suit pending against the University of North Carolina at Chapel Hill over its admissions process.  Id.  In that suit, Students for Fair Admissions alleges that the University is excluding white and Asian applicants in favor of less qualified black and Hispanic students.  Scott Jaschik, Affirmative Action Fight Shifts to UNC, Inside Higher Ed (Jan. 22, 2019),  This suit’s trial is expected to occur in 2020.  Hartocollis, supra.  Moreover, Richard Sander, a known critic of affirmative action, is suing the University of California system for admissions data, alleging that the data will show the University’s system has secretly reintroduced race into admissions decisions.  Id.  The State of California banned affirmative action in colleges and universities in 1996.  Id.  In addition to these suits and other pending appeals, the U.S. Department of Justice has opened investigations into admissions practices at Harvard and Yale.  Id.

For now, the race-conscious admissions processes that several universities have used for many years to ensure diversity remains in their school.  See Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2210, 2214–15 (2016); see Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315–20 (1978); see Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126, 203–04 (D. Mass. 2019).  However, these admissions processes will now receive greater scrutiny from the new conservative majority on the Supreme Court.  See Hartocollis, supra.  Affirmative action policies that were put in place to combat racial discrimination, which have been in place for over forty years, could be changed forever.  See id.  Minority students could once again have to overcome racial prejudice when applying to colleges and universities nationwide.  See id.

*Evan Raigrodski is a second-year law student at the University of Baltimore, where he is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. This summer, Evan interned for the Hon. Karen C. Friedman in the Circuit Court for Baltimore City. He is currently a Rule 19 Student Attorney for the Office of the Public Defender in Baltimore City.



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