Students Against Fair Admissions: The Continued War on Affirmative Action

By Kyle Pham
Associate Editor, Vol. 25

The Harvard Yard

Students for Fair Admissions, Inc. v. Harvard is a federal lawsuit challenging Harvard University’s consideration of race and ethnicity in its undergraduate admissions process.[1] While U.S. District Judge Allison D. Boroughs recently ruled in favor of Harvard University and upheld its used of race in student admissions, Students for Fair Admissions (SFFA) has vowed to appeal the case with the hope of reaching the Supreme Court.[2] SFFA and the Harvard case have sparked significant debate and criticism, raising fears about the future of race-conscious admissions policies and creating division within the Asian American community.

Affirmative action, the practice of favoring individuals belonging to historically disadvantaged groups, has had a contentious history in higher education.[3] After rendering the use of a race-based quota in university admissions as unconstitutional in Bakke,[4] the Supreme Court proceeded to allow the use of a race as a factor in university admissions, so long as such use is narrowly tailored, in Grutter.[5] Of course, legal attacks on race-conscious admissions policies did not end there. In Fisher, the Supreme Court heard a claim brought by a white female who was rejected by the University of Texas at Austin.[6] Following years of precedent and unsuccessful challenges, the Harvard case has simply served as the current frontrunner of opposition to affirmative action.

While not the first attack on affirmative action, the Harvard case distinguishes itself through its involvement of Asian Americans.[7] In its complaint, SFFA alleged that Harvard violated Title VI of the Civil Rights Act by intentionally discriminating against Asian American applicants in its undergraduate admissions policy.[8] SFFA pointed to comparatively lower acceptance percentages for Asian American applications and identified instances in which Harvard’s Admissions Office used phrases aligning with Asian American stereotypes and showed some degree of racial bias.[9] Despite what SFFA presented, the judge found that, although Harvard had an “imperfect” admissions process, statistical disparities among racial groups of applicants “[were] not the result of any racial animus or conscious prejudice.”[10] In addition, the judge found that Harvard “narrowly tailored” its use of race in admissions to achieve the benefits of a diverse class.[11]

In unpacking the controversy of the Harvard case, it is important to consider the nature of SFFA and what it seeks to accomplish. The face behind it, Edward Blum, has a history of crafting legal attacks on civil rights and has challenged race-conscious college admissions programs in the past.[12] While purporting to serve Asian Americans, SFFA’s leadership consists solely of Blum as well as Abigail Fisher and Richard Fisher from Fisher, which Blum was also behind.[13] Like in the past, Blum seeks relief that is narrowly focused on a prohibition of any awareness of race.[14] Although SFFA has claimed that its case is about discrimination against Asian Americans, the remedy that it seeks involves a permanent injunction prohibiting Harvard from considering race as a factor in admissions decisions.[15] Statistical projections have shown that white applicants would be the primary beneficiaries of such a remedy.[16] Blum, through SFFA, is simply using Asian Americans as a prop to achieve a goal that goes far beyond protecting the rights of Asian Americans: eradication of affirmative action.[17]

The Harvard case has certainly raised powerful issues of class, race, and power.[18] Through SFFA, Blum has painted a damaging narrative of discrimination against Asian Americans and unfairness in college admissions. But even acknowledging the sentiments he has stirred and taking the notion of discrimination against Asian Americans seriously, one must recognize a clearer problem in admissions: preference for legacy students. According to Harvard, legacy students constitute roughly 14 percent of the undergraduate population.[19] SFFA’s own study found that legacy applicants were accepted at a rate of nearly 34 percent from 2009 to 2015, compared to an acceptance rate of 5.9 percent for non-legacies, and a 2013 analysis done by Harvard’s Office of Institutional Research found that legacy status “conferred a 40-percentage point advantage of being accepted, but mainly for students already in the most desirable applicant pool.”[20] That being said, race-conscious policies serve as the continued target of litigation. If SFFA successfully appeals its case to the Supreme Court, then decades of precedent enabling universities to consider race in admissions will be at risk. With Justice Gorsuch and Justice Kavanaugh on the Supreme Court now, the future of affirmative action and diverse campuses may be grim.

[1] Peter G. McDonough, The Harvard Admissions Case: Reactions to the Judge’s Ruling, Higher Education Today (Oct. 11, 2019), https://www.higheredtoday.org/2019/10/11/harvard-admissions-case-reactions-judges-ruling/.

[2] Nick Anderson, Federal judge rules Harvard does not discriminate against Asian Americans in admissions, Wash. Post (Oct. 1, 2019), https://www.washingtonpost.com/local/education/federal-judge-rules-harvard-does-not-discriminate-against-asian-americans-in-admissions/2019/10/01/dc106b54-a8a1-11e9-a3a6-ab670962db05_story.html.

[3] See McDonough, supra note 1.

[4] Regents of the University of California v. Bakke, 438 U.S. 265, 379 (1978).

[5] Grutter v. Bollinger, 539 U.S. 306, 328 (2003).

[6] Fisher v. University of Texas at Austin, 570 U.S. 297, 315 (2013).

[7] See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 397 F. Supp. 3d 126 (D. Mass. 2019).

[8] Id. at 131.

[9] See id.

[10] See Anderson, supra note 2.

[11] Id.

[12] Anemona Hartocollis, He Took On the Voting Rights Act and Won. Now He’s Taking on Harvard, N.Y. Times (Nov. 19, 2017), https://www.nytimes.com/2017/11/19/us/affirmative-action-lawsuits.html.

[13] Sarah Hinger, Meet Edward Blum, the Man Who Wants to Kill Affirmative Action in Higher Education, ACLU (Oct. 18, 2018), https://www.aclu.org/blog/racial-justice/affirmative-action/meet-edward-blum-man-who-wants-kill-affirmative-action-higher.

[14] Id.

[15]  Complaint of Plaintiff, Students For Fair Admissions, Inc. v. President and Fellows of Harvard College (Nov. 17, 2014) at 119.

[16] See Hinger, supra note 13.

[17] See id.

[18] See Anemona Hartocollis, Harvard Does Not Discriminate Against Asian-Americans in Admissions, Judge Rules, N.Y. Times (Updated Nov. 5, 2019), https://www.nytimes.com/2019/10/01/us/harvard-admissions-lawsuit.html.

[19] Mayowa Aina and Max Larkin, Legacy Admissions Offer an Advantage – And Not just At Schools Like Harvard, NPR (Nov. 4, 2018), https://www.npr.org/2018/11/04/663629750/legacy-admissions-offer-an-advantage-and-not-just-at-schools-like-harvard.

[20] Id.