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What role does race play in college admissions? What role should it play? And what does the U.S. Constitution have to say about it?

A packed house of New England Law | Boston students and faculty recently gathered to discuss these issues as they relate to SFFA v. Harvard, a case with serious implications for race-based admissions policies.  

Genevieve Torres, Counsel for the Educational Opportunities Project of the Lawyers' Committee for Civil Rights Under Law visited the law school to discuss the case. The Lawyer’s Committee filed an amicus brief supporting Harvard’s Summary Judgment motion and presented opening statements, closing arguments, and witnesses at trial. Joining Torres were constitutional law experts and New England Law Professors Lawrence Friedman and Peter Manus.

About the case

In 2014 the group Students for Fair Admissions, Inc. (SFFA) filed a lawsuit alleging Harvard discriminated against Asian Americans by “employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program”—essentially, holding them to a higher admissions standard than other students and thereby violating the Civil Rights Act of 1964.

SFFA v. Harvard could have major ramifications for affirmative action. The case calls into question the use of “holistic” admissions policies, where a school may consider such subjective application elements as alumni interviews, teacher recommendations, and other personal factors—including an applicant’s race.

Torres said race is just one small piece of the holistic admissions puzzle at Harvard and that students’ race was not used against them, complying with the limited use already outlined by past cases, like 1978’s Regents of the University of California v. Bakke and 2003’s Grutter v. Bollinger. “The current jurisprudence is already quite narrow,” Torres said. “Harvard is considering race in context.” And accepted students were “imminently qualified” regardless of race.

With final arguments in SFFA v. Harvard held in February 2019, a decision is still forthcoming, but it will likely be appealed, regardless of the outcome. As Professor Friedman noted, “Cases like this are constructed to reach the Supreme Court.”

Diversity and discrimination

Thang was eight years old when he emigrated from Vietnam with his family. After arriving in the United States, he became so self-conscious about his accent that he would hold a pencil between his teeth and read books aloud for hours on end to try and sound more “American.” It wasn’t until he was older that he decided to reclaim his heritage. Now he considers his ethnicity a source of pride, and he wrote about that journey in his application essay to Harvard. Thang was accepted and later became one of four students brought in to testify in the SFFA v. Harvard trial.

After Torres shared Thang’s story, several New England Law students noted the critical context race can provide in examining a young person’s life experiences during the college admissions process—experiences that cannot be quantified with things like a standardized test.

“Racial diversity enriches environments for all students,” Torres said. “It is a compelling state interest in encouraging diversity on campus.”

In a case that’s all about reading between the lines, contesting the benefits of diversity isn’t explicitly on the table in SFFA v. Harvard; however, if it leads to the end of affirmative action policies, it could severely undermine schools’ ability to promote diversity on campus, Torres said.

As for race-neutral alternatives, things like socioeconomic diversity may be good, but they’re no proxy for race and the nuanced, complicated impact it can have on a person’s life, Torres said. Above all, she said race-neutral admissions policies are insufficient because people have biases that need to be accounted for.

“We acknowledge bias exists,” Torres said. And while you can say you don’t consider race, that doesn’t make implicit bias—or discrimination—go away.

Holistic admissions and the Constitution

“What does this have to do with the Constitution?” Professor Friedman asked the room.

As a private institution, Harvard ordinarily is not subject to the Constitution’s Equal Protection Clause. This sets the SFFA v. Harvard case apart from previous affirmative action cases like Fisher v. University of Texas, which concerned public institutions. However, Harvard is subject to statutes like the Civil Rights Act of 1964’s Title VI, which prohibits discrimination based on race.

Friedman noted that the case raises First Amendment concerns as well, since holistic admissions policies also tie into academic freedom, and “the modern court has never met a First Amendment free speech case it hasn’t liked.”

Professor Peter Manus described how the Obama-era guidelines for implementing affirmative action policies have been archived under the current administration. But he also noted that such guidelines are arguably “an imposition of the federal government’s point of view.”

Learn more about SFFA v. Harvard and the defense presented by Torres and her team on the latest episode of the New England Law Review’s podcast.