Ahead of Fisher, Harvard Asks To Delay Admissions Lawsuit

Supreme Court's decision in Texas affirmative action case could affect Harvard

UPDATED: July 10, 2015, 1:50 p.m.

Lawyers representing Harvard filed a motion on Monday to delay a lawsuit that alleges that the University’s admissions processes discriminate based on race until the U.S. Supreme Court reviews Fisher v. University of Texas at Austin, another affirmative action case, a second time next term.

University spokesperson Jeff Neal wrote in a statement that the case Harvard faces “deals with the same fundamental issues” as the Fisher case, which involves a white woman who argues that the University of Texas’s consideration of race in admissions decisions is in violation of the equal protection clause of the Fourteenth Amendment.

The Supreme Court first heard the case in 2013 and sent the case back to the Fifth Circuit Court of Appeals, which upheld the University of Texas’s admissions process. In June, the Supreme Court decided to hear the case for the second time.

The lawsuit against Harvard, filed in November by an anti-affirmative action group, accuses Harvard of “employing racially and ethnically discriminatory policies” against Asian-American applicants.

Both lawsuits threaten race-based affirmative action policies that many universities, including Harvard, argue are important to supporting campus diversity. They are backed by the same person, Edward Blum, the director of the group Project on Fair Representation, which opposes race-based affirmative action.

Despite recent scrutiny, Harvard has repeatedly defended its use of race as one factor among others in admissions decisions; in a May statement, University Vice President and General Counsel Robert W. Iuliano ’83 said the College’s policies are “fully compliant with the law.”

The motion filed to delay the lawsuit Harvard currently faces, however, seems to acknowledge that the Supreme Court’s ruling in Fisher could offer a new interpretation of the legality of race-based affirmative action policies.

“The disposition of Fisher has the potential to significantly affect this litigation because [Fisher] presents the Supreme Court with an opportunity to clarify the law governing how public universities may consider race in the admissions process,” says the motion, which Harvard filed in a federal district court on Monday.

Still, Blum, who is behind the Harvard lawsuit, maintains that the case should not be delayed.

"The facts in this case will remain the same regardless of the Fisher case,” Blum wrote in an email Tuesday. “The judge should not allow Harvard to continue its quota to cap the number of Asians the college admits by halting discovery."

Legal observers say that the Fisher case could affect Harvard beyond a possible delay on the admissions lawsuit it faces now. A Supreme Court ruling in favor of Fisher could mean an end to race-based affirmative action policies not just at public universities, but at private ones like Harvard.

“The fact that the Supreme Court took this case back is bad news for the proponents of affirmative action,” said Richard D. Kahlenberg, a senior fellow at the Century Foundation, a liberal think tank. Kahlenberg has been a paid consultant to the plaintiffs in the Harvard lawsuit.

Parke P. Muth, a former associate dean of admissions at the University of Virginia who now runs a college consulting business, said now that the Court has considered the case once, the nine justices will focus on defining the terms used by colleges to defend affirmative action policies, such as “diversity” and the use of a “holistic” admissions process.

“A lot of people have questioned… the terms that are being used,” Muth said. “How do you know when you have enough? When you say we’re looking for a diverse class, what does that mean?”

According to Peter F. Lake ’81, a professor at Stetson University College of Law who specializes in higher education law, these upcoming cases will only add to an ongoing discussion about race, diversity, and alleged discrimination in higher education.

“Fisher v. Texas will not end all litigation,” Lake said. “We’ll just have to see what happens. It’s going to be a fascinating moment.”

The University of North Carolina—Chapel Hill, which faces a similar lawsuit, has also requested a delay of litigation pending Fisher.

—Staff writer Melanie Y. Fu can be reached at melanie.fu@thecrimson.com. Follow her on Twitter @MelanieYFu.

—Staff writer Jalin P. Cunningham can be reached at jalincunningham@college.harvard.edu. Follow her on Twitter @JalinCunningham.