Students for Fair Admissions Inc. v. President & Fellows of Harvard College

LII note: The U.S Supreme Court has now decided Students for Fair Admissions Inc. v. President & Fellows of Harvard College

Issues

Should the Supreme Court overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions? Is Harvard College discriminating against Asian American applicants and rejecting workable race-neutral alternatives, thus violating Title VI of the Civil Rights Act?

This case asks the Supreme Court to decide whether Grutter v. Bollinger should be overruled and whether universities should be prohibited from using race in the admission process, as well as whether Harvard violated Title VI of the Civil Rights Act by discriminating against Asian American applicants in the admission process and by rejecting workable, race-neutral alternatives. Students for Fair Admissions, Inc. argues that Grutter should be overruled, that universities should not be allowed to use race as a factor in college admission, and that Harvard unlawfully discriminated against Asian American applicants. Harvard counters that Grutter should stand, that there are no workable, race-neutral alternatives, and that Harvard does not discriminate against Asian American applicants. This case has significant implications for future admission practices, diversity on college campuses, and racial minorities.

Questions as Framed for the Court by the Parties

(1) Whether Grutter v. Bollinger should be overruled and institutions of higher education should be banned from using race as a factor in admissions; and (2) whether Harvard College violated Title VI of the Civil Rights Act by discriminating against Asian American applicants and abandoning race-neutral alternatives.

Facts

Students for Fair Admissions, Inc. (“SFFA”) constitutes a coalition of applicants and prospective applicants to institutions of higher education and their families, and includes at least one Asian-American member who applied for and was denied admission to Harvard. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. President and Fellows of Harvard College (“Harvard”) is a governing board of Harvard College , an institution of higher education located in Cambridge, Massachusetts. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. Harvard receives finances from the federal government and thus is subject to Title VI of the Civil Rights Act of 1964 , which prohibits discrimination based on various characteristics including race. The Office of Admissions and Financial Aid at Harvard ("Admissions Office") makes admission decisions. A typical application file includes various materials such as the applicant’s basic information, family information, SAT scores, and essays Harvard permits students to identify their race but does not require them to do so. The application is reviewed by a first reader, subcommittee, and full committee; then, a post-admission review is conducted. Harvard maintains that classroom diversity is essential to achieving its educational mission. To achieve such diversity, Harvard considers race in the admission process and alleges that no other race-neutral alternative exists. SFFA contends that Harvard discriminates against Asian American applicants by assigning lower personal and overall ratings compared to applicants of other races. The personal rating “summarizes the applicant's personal qualities.”

On November 17, 2014, SFFA filed a suit against Harvard, alleging that Harvard violated Title VI by discriminating against Asian Americans. SFFA alleged six causes of action : “Intentional Discrimination against Asian Americans” (Count I); “Racial Balancing” (Count II); “Failure to Use Race Merely as a ‘Plus’ Factor in Admissions Decisions” (Count III); “Failure to Use Race to Merely Fill the Last ‘Few Places’ in the Incoming Freshman Class” (Count IV); “Race-Neutral Alternatives” (Count V); and “Any Use of Race as a Factor in Admissions” (Count VI). The United States District Court for the District of Massachusetts stayed the action until the Supreme Court’s ruling in Fisher v. University of Texas at Austin on June 23, 2016. Harvard filed a motion to dismiss for lack of standing , which the court denied. Harvard also moved for judgment on the pleadings as to Counts IV and VI, for which the court granted judgment on the pleadings.

SFFA appealed the decision to the United States Court of Appeals for the First Circuit . The First Circuit affirmed the district court’s judgment, holding that although SFFA had standing, Harvard’s admission program survives strict scrutiny . Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. The First Circuit affirmed that Harvard does not intentionally discriminate against Asian Americans and thus does not violate Title VI.

On February 25, 2021, SFFA filed a petition for a writ of certiorari . The United States Supreme Court granted certiorari on January 24, 2022.

Analysis

SFFA’S STANDING TO CHALLENGE HARVARD’S ADMISSIONS POLICY

SFFA explains that because SFFA is a voluntary membership association, it must prove associational standing . SFFA contends that it satisfies Hunt v. Washington Apple Advertising Comm’n ’s three-part standing test because (1) its members have “standing to sue in their own right”; (2) the relevance of litigation to the purpose of the organization; and (3) the litigation does not require individual members’ participation. SFFA argues that another test from Hunt , the “indicia-of-membership test,” which requires that the members “control, direct, [and] finance the organization,” does not apply to SFFA. This test, SFFA maintains, only applies to non-voluntary membership organizations. SFFA states that it is a “traditional voluntary membership organization,” and thus the test does not apply. Even if the test applies, SFFA contends that it satisfies the test, as the district court found. Finally, SFFA argues that being an association does not affect its standing since the Court routinely decides cases brought by other membership associations.

Harvard does not dispute that SFFA satisfies Hunt ’s tests. Brief in Opposition to Petition for a Writ of Certiorari However, Harvard counters that SFFA is controlled by “bystanders” who have no actual stake in the outcome. Harvard points out that applicants who are allegedly members of SFFA neither finance the organization nor select the board. Thus, Harvard argues that the associational standing doctrine, which allows “genuine membership organizations” that embody the members and their interests to represent the injured members in a lawsuit, does not apply to SFFA. Harvard also points out that the Supreme Court precedent involving challenges to college admissions programs, University of California Regents v. Bakke , Grutter v. Bollinger , Gratz v. Bollinger , and Fisher v. University of Texas at Austin , had been brought by individuals, while SFFA is an organization that alleges to maintain associational standing. Supplemental Brief for Respondent

WHETHER TO OVERRULE GRUTTER V. BOLLINGER

According to SFFA, when courts find that organizations have standing, courts will typically consider three factors when deciding whether to overrule precedent: whether the prior decision 1) is “not just wrong, but grievously or egregiously wrong,” 2) has caused significant negative consequences, and 3) created substantial reliance interests. SFFA asks the Court to overrule Grutter and claims that the Court need not consider whether it should overrule Bakke or Fisher , subsequent cases that applied Grutter . Supplemental Brief for Petitioner SFFA argues that Grutter contravenes the Fourteenth Amendment’s history of abolishing racial distinctions. SFFA contends that the interest in a diverse student body is not more compelling than other interests that the Court has rejected as insufficiently compelling to justify racial classifications, such as “remedying societal discrimination.” SFFA further asserts that Fourteenth Amendment forbids assumption that race represents a valid proxy for certain viewpoints or experiences. SFFA argues that Grutter ’s interpretation of narrow tailoring fails by not demanding race be necessary to achieve an alleged compelling interest, unlike other precedent which requires such a showing. SFFA highlights that race-neutral alternatives that focus on actual disadvantage are more narrowly tailored than Harvard’s admission process that uses race as a proxy for disadvantage.

Harvard counters that Grutter, Bakke, and Fisher should stand. Brief for Respondent Harvard argues that the Fourteenth Amendment does not support the absolute rejection of racial distinction, but rather supports equal protection. Harvard specifies that the Fourteenth Amendment’s history allows race-conscious measures. Further, Harvard counters that the interest in a diverse student body in higher education remains compelling. As a ground, Harvard cites the Bakke and Grutter opinions that highlighted the importance of education, the impact of racial diversity on an educational mission, and the benefits of learning from diverse students such as eliminating racial stereotypes. Harvard also responds that considering race among many other factors is not racial stereotyping, and that the precedent does not support racial stereotyping.

EVALUATING GRUTTER’S PROGENY

SFFA argues that Grutter and its progeny are unworkable. SFFA claims that Grutter is unworkable because it leads Harvard to take contradicting positions, representing that race is not “outcome determinative” while using race to maintain minority student enrollment. SFFA posits that upholding Grutter required the Court to develop exceptions against longstanding rules. For instance, SFFA maintains Grutter departed from precedent by allowing courts to address motives in strict scrutiny analysis by addressing the context and motive of using race in admissions. SFFA also claims that Grutter gives too much deference to universities, and universities that take federal funds cannot claim “special” deference under the First Amendment while violating Title VI. SFFA asserts that while the plurality in Parents Involved in Community Schools v. Seattle School District No. 1 stated that race must be “necessary to achieve the asserted educational benefits,” the Fisher court abrogated this standard by allowing universities to reject neutral alternatives when they aim to increase minority enrollment.

Harvard responds that the Court’s precedent promoted educational benefits from diverse student bodies. In addition, Harvard points out that precedent strongly supports that courts give deference to universities regarding their educational missions. Harvard further argues that the Grutter court considered race as part of a holistic review rather than making it “outcome determinative.” Harvard stresses that it does not discriminate against Asian American applicants and that race plays no role in considering applicants’ personal qualities. Harvard also claims that SFFA did not provide evidence that Grutter pushes Asian American applicants to hide their racial background. Harvard emphasizes that overruling precedent will lead to fewer underrepresented minority students being admitted.

RELIANCE INTERESTS AND RACE-NEUTRAL ALTERNATIVES

SFFA argues that stare decisis only considers legitimate reliance interests. SFFA cites Dobbs v. Jackson Women’s Health Org ’s contention that cases that infringe on “equality before the law” should be overturned and claims that there is no legitimacy in racial classifications. SFFA asserts that overruling Grutter will not require burdensome changes to the current admission policy because race is only one of multiple factors in Harvard’s holistic review. SFFA notes that Harvard’s admissions program does not rely on Grutter ’s model. SFFA argues that Harvard does not follow Grutter ’s 25-year deadline for considering race in the admission process and does not pursue a “ critical mass ” of underrepresented minority students, which was an important goal of Grutter. SFFA contends that Grutter ’s race-based admissions have led to no progress, undermining its importance as precedent. SFFA argues that Harvard never considered adopting alternative, race-neutral admission processes until SFFA sued Harvard in 2014. SFFA states that Harvard’s professed concerns that a decrease in minority admissions will alienate and isolate minority students constitute proof that Harvard improperly uses quotas, and posits that Harvard should consider available race-neutral alternatives.

Harvard counters that universities have substantial legitimate reliance interests. Harvard argues that race-blind admissions would adversely affect universities that invested in individualistic and holistic admission systems . Harvard explains that universities’ course design and faculty hiring are correlated to diverse student bodies, in a way that positively affects and is affected by student diversity. Thus, Harvard contends that overruling precedent is more than a mere change to admission policy. Harvard also responds that racial classification is not the legitimate interest here; rather, the interest is in cultivating leaders who were exposed to diversity, which was the interest in Bakke , Grutter , and Fisher . In addition, Harvard argues that Grutter ’s 25-year deadline is an aspiration rather than a firm deadline. Harvard argues that a university is not required to define “critical mass” because it need not pinpoint what particular level of minority enrollment establishes diversity. Harvard notes that courts allow schools to consider race when there is no race-neutral alternative available. Harvard argues that adopting SFFA’s race-neutral alternative affects Harvard’s other academic goals, such as academic excellence or preventing the isolation of underrepresented students. Harvard states that the public has substantial interests since the precedent signals that diversity is essential in America’s democracy.

Discussion

VIABILITY OF RACE-CONSCIOUS AND RACE- NEUTRAL ADMISSIONS

The State of Texas, in support of SFFA, asserts that the Court’s framework for race-conscious admissions is unpredictable. Professor David E. Bernstein adds that racial categories are arbitrary and often inaccurate when self-reported, making race-conscious admissions flawed. Oklahoma and eighteen states (collectively “Oklahoma”) argue that vague race-conscious admission frameworks should be abandoned in favor of race-neutral ones. Oklahoma contends that states which have banned race-conscious admissions have still been able to recruit diverse student bodies.

College Board and other admissions organizations, in support of Harvard, maintain that the current legal guidelines for race-conscious admissions are predictable and have been well-adopted by universities. The University of Michigan (“Michigan”) emphasizes that race is often necessary to understand an individual applicant’s experiences. Michigan cautions that its past attempts at race-neutral admissions have failed to satisfy the university’s need for diversity. The Presidents and Chancellors of the University of California similarly warn that their past attempts to boost diversity through race-neutral admissions programs have been unsuccessful relative to race-conscious admission processes.

DIVERSITY IN HIGHER EDUCATION

Southwestern Legal Foundation, in support of SFFA, argues that race-conscious admissions do not necessarily lead to diverse ideas on campus. Speech First posits that campuses have grown more ideologically conformed and enforce uniformity by suppressing student expression. National Association of Scholars (“NAS”) claims that race-conscious admissions hurt diversity efforts by mismatching students to institutions that are too academically challenging, causing students to take actions like transferring or choosing less rigorous majors.

Deborah Cohen and 67 other professors (“Cohen”), in support of Harvard, dispute that school efforts to boost diversity suppress speech or segregate campuses. The American Educational Research Association and other research associations submit that scientific research shows that racial diversity improves critical thinking and cross-cultural skills among college students. Empirical Scholars rebut the idea that race-conscious admissions mismatch students and institutions, claiming that research which supports that idea is flawed and seriously challenged.

INTERESTS OF RACIAL MINORITIES

Project 21, in support of SFFA, maintains that race-conscious admissions harm racial minority students by casting doubt on whether the students’ academic achievements were achieved on merit. The Asian American Coalition for Education and Asian American Legal Foundation raise concerns that race-conscious admissions perpetuate racial stereotypes and cause young Asian Americans to downplay and be ashamed of their racial identities. Pacific Legal Foundation notes that issues caused by race-conscious admissions extend beyond colleges, as K-12 schools have adopted race-conscious admissions.

The Council of Great City Schools, in support of Harvard, maintains that race-conscious admissions are necessary because primary and secondary education still have racial segregation problems. The HR Policy Association emphasizes that diverse college classes are essential to increase the number of underrepresented racial minorities in the corporate workforce and business leadership. Asian American Legal Defense and Education Fund argues that race-conscious admissions acknowledge that Asians are a collection of unique subgroups and create diverse campuses which help Asian students with self-growth and safety.