Claire Sweetman



In November 2018, the grueling three week-long trial over whether the Harvard undergraduate admissions program discriminates against Asian-Americans came to a close.[1] The outcome now lies in the hands of Judge Allison Burroughs of the District Court for the District of Massachusetts, who presided over the bench trial and is scheduled to issue her opinion within the next month.[2] The plaintiff, a nonprofit organization known as Students for Fair Admissions (SFFA), argued that Harvard administers racially and ethnically discriminatory policies in its undergraduate admissions program at the expense of Asian-Americans in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.[3] Harvard denied the allegation, maintained that its admissions policies fully comply with federal law, and successfully pivoted the discussion away from anti-Asian discrimination to focus on affirmative action generally.[4] This risky line of argumentation threatens the legality of all affirmative action policies in higher education and sets up an inevitable target for the U.S. Supreme Court.[5]  

The creative manner in which the parties have framed their arguments distinguishes this case from others of its nature. For instance, the SFFA argued that, to remedy discrimination against Asian-Americans, colleges should no longer consider race in admissions processes.[6] The SFFA receives the majority of its funding from conservative political activist Edward Blum—a sixty-six-year-old white male who remains outspoken against affirmative action.[7] Blum created the SFFA in order to restore the “original principles of civil rights in the United States” by eliminating the use of race as a factor in college admissions.[8] Generally, plaintiffs arguing against affirmative action cases are white and typically lament that using race as a “plus” factor in admissions ends up as a minus factor for the majority group. However, Blum is approaching his side of the argument in a different manner. His previous work on race-related cases as well as his publicly acknowledged goal of eliminating race as a consideration in admissions has led critics to believe that Blum is “using Asian Americans as a prop” to strike down affirmative action for good.[9] This places Asian-Americans seeking redress from discrimination in a very difficult position: “Either be good allies to other racial minority groups . . . or be outcast as greedy villains who are naively being used by white conservatives.”[10]

Because SFFA v. Harvard implicates affirmative action generally, it is poised for Supreme Court review. Although precedent seems settled in this area, the new ideological makeup of the nation’s highest court may have a severe effect on all admissions policies in higher education.

I.  U.S. Supreme Court Affirmative Action Jurisprudence

Although Judge Burroughs declared early on in the litigation timeline that she would “defend race-conscious admissions,” any decision made at the district court level will almost certainly reach the Supreme Court in the forthcoming years.[11]  Thus, the implications of this case will resonate throughout the nation regardless of what the district court holds. In the past several decades, the Court has handed down major decisions regarding affirmative action that may telegraph its potential ruling on SFFA v. Harvard. In 1978, the Court issued its opinion in the now famous affirmative action case, Regents of University of California v. Bakke.[12] In this case, the Court struck down the university’s admissions program which “totally excluded ‘non-minority individuals from a specific percentage of seats in an entering class.’”[13]  Although the court admonished the admissions program, Justice Powell made clear in the opinion that states do have “a substantial interest [in a diverse student body] that . . . may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.”[14] Therefore, the Court held that affirmative action programs can be legal, so long as the policy “is necessary to promote a substantial state interest.”[15] Judge Burroughs will almost certainly take this analysis into consideration in the issuance of her opinion next month.

SFFA v. Harvard now nips at the heels of an even more recent affirmative action case, Fisher v. University of Texas.[16] In Fisher, petitioner Abigail Fisher was denied admission to the university’s 2008 undergraduate freshman class.[17] She argued that the university’s consideration of race as part of its “holistic-review process” impermissibly disadvantaged her and other white applicants in violation of the Equal Protection Clause of the U.S. Constitution.[18] Pursuant to Texas’s Top 10% Law, the University of Texas offers priority admission to students who graduate from a Texas public high school in the top ten percent of their class.[19] After those students are accepted, the university fills the remainder of the freshman class by reviewing an applicant’s “Academic Index” (SAT scores and high school academic performance) and “Personal Achievement Index,” which includes many factors (most notably, race) to determine if a student qualifies for admission.[20]

In the wake of its early 2000’s decisions of Gratz and Grutter, the Court in Fisher faced the task of determining whether the university’s policy was narrowly tailored to achieving the state’s compelling interest of diversity in its freshmen class.[21] Employing strict scrutiny analysis, the Court affirmed the rulings of the district court and the Fifth Circuit Court of Appeals in concluding that the university’s race-conscious admissions program did not violate Equal Protection and was sufficiently tailored to the goal of achieving racial diversity in the freshman class. Thus, Fisher’s rejection from the school was not a manifestation of impermissible discrimination, but rather a permissible policy of affirmative action. Fisher therefore solidified that admissions procedures may permit the consideration of race as a factor, so long as the process is carefully designed to provide individualized attention to each applicant. If admissions processes provide sufficient individualized attention, the processes would satisfy the ‘narrowly tailored’ requirement of strict scrutiny.[22]            

II. Likely Outcome at the Supreme Court

The Court’s recent ideological shift with the appointments of Associate Justices Neil Gorsuch and Brett Kavanaugh has almost ensured that SFFA v. Harvard will reach the Court despite having just ruled on the issue as recently as Fisher in 2016.[23] With the Court netting two fresh sets of conservative ears, victory for SFFA at the expense of affirmative action policies in college admissions is near certain, despite Fisher’s precedent.[24] Ilya Shapiro, a senior fellow at the Cato Institute, reasoned that affirmative action “could be vulnerable if the lawsuit goes to the Supreme Court” and if Justice Kavanaugh follows the lead of Chief Justice John Roberts.[25] Mr. Shapiro commented that Chief Justice Roberts “has written that the only way to stop discriminating on race is to stop discriminating on race.”[26] Further, Justice Kavanaugh himself, in Rice v. Cayetano, filed an amicus brief on behalf of the Center for Equal Opportunity, an anti-affirmative organization involved in the dispute.[27] In his brief, he voices his support of racial blindness over affirmative action. Additionally, Justice Kavanaugh argued in his opinion in South Carolina v. U.S. that the state’s voter ID laws were not motivated by racist views and did not violate the Voting Rights Act.[28] Finally, unlike past legal challenges to affirmative action, this case involves a private institution’s right to “set its own mission and standards for admissions,” which may be appealing for the Court to analyze as well.[29] Thus, scholars note that the conservative control of the court might spell the end to the consideration of race in college admissions.[30]

SFFA’s main argument rests on statistical evidence demonstrating that although Asian-Americans enroll in college at higher rates than other minority groups, they experience the lowest admissions rate of any group.[31] This may be explained by either implicit bias throughout the admissions practices or Harvard’s “Asian personality penalty.”[32] Throughout the discovery process, the lawsuit has dredged up Harvard’s policy of systematically assigning Asian-Americans an artificially low “personal rating,” a crucial consideration in its admissions scheme that evaluates personality qualities “such as kindness, humor and courage.” Additionally, the litigation has revealed that Asian-American applicants to Harvard receive worse teacher, counselor, and alumni recommendations compared to white applicants.[33] SFFA also suggests that implicit bias plays a role in the process, and that Harvard’s admissions officers “may be stereotyping Asian-American students, evaluating them as quiet, bookish, and less appealing than white” applicants.[34]

  Harvard countered that its personal score assessment is intricate, complex, and “considers an enormous variety of unobservable factors.”[35] Therefore, any allegations of implicit bias are groundless and unsubstantiated in evidence. Harvard’s dean of admissions also took the stand to argue that SFFA “cherry-picked data” and that “its analysis of the university’s admissions process is flawed.”[36] Furthermore, Harvard argued that the weaker teacher recommendations were a result of Asian-American students’ lower personal ratings.[37] Ultimately, both sides presented “dueling expert analyses” over the applicable data, making predicted outcomes less certain if the Court chooses to skirt the affirmative action issue completely.[38]

III. Conclusion

Accordingly, the fate of affirmative action in higher education hangs in the balance. On one hand, controlling precedent permits the consideration of race in university admissions programs so long as the policy is narrowly tailored to the university’s substantial interest in a diverse student body.[39] However, the fact that SFFA v. Harvard involves a private university, coupled with the Court’s new conservative identity generates a cause for alarm for proponents of affirmative action. Although Judge Burroughs’s impending decision at the district court level may serve as a framework for appellate arguments the real ballgame will likely be played in Washington D.C. in front of the Supreme Court in the next several years.

[1] Meghan Liu, Harvard Affirmative Action Case Pits Asian Americans Against Each Other – and Everyone Else, Wash. Post (Jan. 18, 2019),

[2] Id.

[3] See Students for Fair Admissions v. Harvard, 308 F.R.D. 39, 42 (D. Mass. 2015) (Mem. and Order on Proposed Defs. Intervenors’ Mot. to Intervene). 

[4] See id.; see also Liu, supra note 1.

[5] Deirdre Fernandes, What’s Next for Harvard’s Affirmative Action Case? It’s Complicated., Bos. Globe (Nov. 24, 2018),

[6] P.R. Lockhart, The Lawsuit Against Harvard that Could Change Affirmative Action in College Admissions, Explained., Vox (Oct. 18, 2018),

[7] Id.

[8] Id.

[9] Id.

[10] Liu, supra note 1.

[11] Liu, supra note 1.

[12] 438 U.S. 265 (1978).

[13] Id. at 319.

[14] Id. at 320.

[15] Id.

[16] 136 S. Ct. 2198 (2016).

[17] Id. at 2202.

[18] Id.

[19] Id.

[20] Id.

[21] See Gratz v. Bollinger, 539 U.S. 244 (2003) (holding that the University of Michigan’s freshman admissions policy violated the Equal Protection Clause and Title VII “because its use of race was not narrowly tailored” to achieve the compelling interest of diversity); see also Grutter v. Bollinger, 539 U.S. 306 (2003) (holding that: 1) law schools have a compelling interest in having a diverse student body; 2) the admissions program was sufficiently narrowly tailored; and 3) therefore the Equal Protection Clause was not violated in this case).

[22] See Marvin Krislov, What Will the Harvard Case Mean for Affirmative Action?, Forbes (Dec. 3, 2018).

[23] Fernandes, supra note 5.

[24] See id.

[25] Anemona Hartocollis, What’s at Stake in the Harvard Lawsuit? Decades of Debate Over Race in Admissions, N.Y. Times (Oct. 13, 2018).

[26] Id.

[27] Rice v. Cayetano, 528 U.S. 495 (2000); Lauretta Charlton, What to Know About Kavanaugh’s Record on Civil Rights, N.Y. Times (Sept. 6, 2018).

[28] See Charlton, supra note 27; see also South Carolina v. U.S., 898 F. Supp. 2d 30 (D.D.C. 2012).

[29] Fernandes, supra note 5.

[30] Id.

[31] See Liu, supra note 1.

[32] Id.

[33] See id.

[34] Fernandes, supra note 5.

[35] Liu, supra note 1.

[36] Fernandes, supra note 5.

[37] See Lockhart, supra note 6.

[38] Id.

[39] See Fisher v. University of Texas, 136 S. Ct. 2198 (2016); Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003); Regents of California v. Bakke, 438 U.S. 265 (1978).