US appeals court upholds Harvard’s use of race in considering admissions

Court rejects challenge by affirmative action opponents who said school’s policy discriminates against Asian Americans

Harvard University in Cambridge, Massachusetts.
Harvard University in Cambridge, Massachusetts. Photograph: Anik Rahman/Zuma Wire/Rex/Shutterstock

A US appeals court on Thursday upheld Harvard University’s use of race in undergraduate admissions, rejecting a challenge by affirmative action opponents who said the elite Ivy League college’s policy discriminates against Asian Americans.

Opponents of the decision by the first US circuit court of appeals in Boston promised to appeal to the US supreme court, where legal experts believe the 6-3 conservative majority could use the case to end more than 40 years of allowing race as a factor in higher education admissions.

The appeals court rejected claims by Students for Fair Admissions (SFFA), a nonprofit founded by anti-affirmative action activist Edward Blum, which drew support from the Trump’s administration.

SFFA said Harvard engaged in impermissible “racial balancing” to make it easier for Black and Hispanic people to win admission, and did not narrowly tailor its use of race.

It said this violated Title VI of the Civil Rights Act of 1964, which the school must comply with in order to receive federal funding.

US circuit judge Sandra Lynch, however, said Harvard’s use of race was not “impermissibly extensive” and was instead “meaningful,” because it prevented diversity from plummeting.

“Harvard’s race-conscious admissions program ensures that Harvard can retain the benefits of diversity it has already achieved,” she said.

Blum in a statement pledged to ask the supreme court “to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities”.

The supreme court has allowed race to be used in college admissions to promote diversity in the classroom.

Harvard spokeswoman Rachael Dane said Thursday’s decision reflected efforts to “create a diverse campus that promotes learning and encourages mutual respect and understanding … Now is not the time to turn back the clock on diversity and opportunity.”

The 2-0 decision upheld an October 2019 ruling by US district judge Allison Burroughs in Boston. A third judge on the appeals court panel, Juan Torruella, died last month.

Burroughs had concluded that Harvard’s admissions program was “not perfect” but that the school had no “workable and available race-neutral alternatives”.

Lynch said the nature of Harvard’s admissions process, including that applicants win approval from a 40-person committee before being offered admission, “offset any risk of bias”.

The US justice department had, in the Trump administration, backed SFFA, arguing in a “friend-of-the-court” brief that Harvard “actively engages in racial balancing that supreme court precedent flatly forbids”.

The Trump administration filed a similar lawsuit on 8 October against Yale University, accusing that Ivy League – a small group of elite, private US universities – school of discriminating against Asian and white applicants.

Yale said it “does not discriminate against applicants of any race or ethnicity,” and would not change its admissions policies because of what it called the government’s “baseless” lawsuit.

SFFA is also pursuing a similar case against the University of North Carolina at Chapel Hill challenging its consideration of race as a factor in its admissions process. A non-jury trail in that case began on Monday.