Anti-affirmative action group Students for Fair Admissions challenged Harvard representatives in oral arguments before the First Circuit Court of Appeals last month.
While legal experts believe the Court will not reach a decision for several months, that time period could coincide with both a new U.S. President and a new Supreme Court justice. President Donald J. Trump nominated Judge Amy V. Coney Barrett to the bench last month. While Coney Barrett has not previously ruled on race-conscious admissions, experts say her ascension could threaten precedents supporting affirmative action.
District Court judge Allison D. Burroughs ruled last fall that Harvard does not intentionally discriminate against Asian American applicants, a decision SFFA appealed in February. SFFA and Harvard presented oral arguments last month, during which the Department of Justice and NAACP Legal Defense and Education Fund testified for the two sides.
Here’s what experts say those arguments mean, both for the future of SFFA’s suit and for race-conscious admissions across the country.
Scholars say SFFA has tried to paint alleged implicit bias against Asian Americans in Harvard’s admissions process as a form of intentional discrimination, particularly in its most recent oral argument.
“SFFA really emphasized the racial stereotyping and implicit bias of Asian Americans and actually argued, interestingly, that that’s a form of intentional discrimination, which is unusual. Usually you think of implicit bias as unintentional,” said University of New Mexico law professor Vinay Harpalani. “It’s a way to latch on the appeal and go further to the First Circuit, potentially to the U.S. Supreme Court, and kind of use this theory to carry along the challenge to affirmative action.”
Harpalani also pointed out the distinction between policies that discriminate against Asian Americans and affirmative action in service of racial diversity.
“It’s almost like their whole case is about taking this idea of discrimination against Asian Americans, vis-a-vis white Americans, he said. “They’re trying to promote that to actually challenge Grutter [v. Bollinger], to challenge race-conscious admissions to benefit African Americans and Latinos — which is a separate thing.”
Mitchell J. Chang, a professor of education at the University of California, Los Angeles, said SFFA’s “smoking gun” would show Asian American plaintiffs are being penalized in their qualitative measures.
“I think that the question of whether or not Asian Americans are being discriminated against still stands, but how you frame it is the problem I have with SFFA,” Chang said. “They’re framing it as a result of race-conscious admissions that’s supposed to benefit African Americans and other disadvantaged groups.”
“If this lawsuit is really in the interest of its Asian American plaintiffs, then why aren’t we addressing the advantages that white applicants are having?” he added.
Harvard, by contrast, has relied on decades of case law supporting race-conscious admissions. Peter F. Lake ’81, a Stetson University law professor, said such precedents are central to the University’s case before the First Circuit.
“‘This isn’t the time to overrule Fisher v. Texas, nor is it the right or job of a district or circuit to do that,’” he said, describing Harvard’s stance. “Harvard has been put through the test and has demonstrated that it has succeeded in a very thoughtful opinion.”
The timeline for the Circuit Court’s ruling remains unpredictable. Whenever that ruling comes down, though, experts said the losing side will likely again appeal the decision.
“It’s hard for me to see the First Circuit ruling in favor of SFFA,” Harpalani said, citing the three appellate judges assigned to the case. “Judges Lynch, Juan Torruella, and Howard, they’re two Republican appointees and one Democratic appointee — one Reagan appointee, one Bush appointee, and one Clinton appointee. But that doesn’t really mean much at this level.”
Lake said he believes previous race discrimination cases in university admissions could hint at the future of SFFA’s suit.
“It wouldn’t surprise me to see the Circuit test some noncongruence with the District and remand the case for further proceedings or some kind of further judicial activity before that would be potentially ripe for final decision,” said Lake. “That’s been kind of the way these cases have gone in the past.”
SFFA has sued several universities over their admissions policies, meaning circuit courts could rule differently on the matter within the coming months. Lake said the First Circuit will have to be careful when timing its decision relative to the college application cycle.
“It’d be a heck of a thing to get a decision from the First Circuit in May that tells you what you did in April, in March was unlawful,” said Lake. “If that’s where we’re headed, I think we’d want to know that ahead of the admission season.”
“I would think the First Circuit will come out with an opinion in the spring some time,” Harpalani said.
Despite the case’s unclear path forward, Lake said he believes anti-affirmative action advocates should not be overly optimistic about SFFA’s appeal, even given Coney Barrett’s nomination.
“People will believe that with new justices, there may be a chance to overrule precedent. But the Supreme Court’s credibility in a lot of ways — as well as its rule on American society — is bent on respecting stare decisis,” Lake said. “It doesn’t mean that you don’t overrule, because they have and they will in the future, but that’s a pretty somber choice.”
Harpalani, however, said race-conscious policies are safest if the Court does not take up any of SFFA’s challenges.
“The best chance for affirmative action to survive is if the Supreme Court does not grant cert,” Harpalani said. “If [the Trump administration] really wants to strike down affirmative action now, they’ll grant cert and the justices are there to do it.”
Several experts said they believe the Department of Justice’s support for SFFA in the lawsuit and its concurrent investigations into race-based admissions at other universities have political motives.
Chang cited the Justice Department’s decision to sue Yale over its allegedly discriminatory admissions policies last week, for example.
“This was the first time [the DOJ] came out so strongly against a particular institution and basically told them to suspend it,” Chang said. “It’s an administration that is trying to signal their stance on race-consciousness leading into the elections.”
The Justice Department did not immediately respond to a request for comment.
University of Southern California education professor Tatiana Melguizo said she worries an end to affirmative action nationwide would mirror the same negative effects that Black and Latino students have faced in California since the state’s 1996 ban of the practice.
“As soon as a Proposition 209 stopped, you could see a substantial decrease in the acceptance of Latinos and African Americans,” Melguizo said. “That had a snowball effect because the students were receiving some sort of signal that they were not welcome.”
Melguizo cited economic studies Harvard presented against SFFA in its court cas,e which demonstrated the role of affirmative action in student outcomes.
“These economists estimated the loss in earnings for the Latino population is in the millions of dollars because students could not get admission and then went to less-selective institutions,” Melguizo said.
Chang also referenced the drop in numbers of African American and Latino students in California following the removal of race-conscious admissions practices.
“SFFA seemed to have conceded that point because the empirical evidence there is just overwhelming,” Chang said. ‘There is a really strong relationship and strong added value to attending a more racially diverse campus.”
Describing this case as the biggest race discrimination lawsuit in higher education in recent years, Lake said he believes the implications of the case will extend far beyond Harvard’s admissions program.
“International audiences are watching this as well because Harvard is a global presence,” Lake said. “The implications for this case resonate globally.”
Correction: October 13, 2020
A previous version of this article incorrectly stated that Mitchell J. Chang served as an expert witness for SFFA in a suit it brought against the University of North Carolina. In fact, he served as an expert witness for UNC.
—Staff writer Benjamin L. Fu can be reached at firstname.lastname@example.org. Follow him on Twitter @BenFu_2.