UPDATED: November 7. 2016, at 11:05 a.m.
For two years, Harvard’s admissions policies have been at the center of an ongoing lawsuit alleging race-based discrimination against Asian American applicants. The case was put on hold in advance of a Supreme Court ruling on the affirmative action case Fisher vs. The University of Texas at Austin. Now that the Court upheld that admissions policy over the summer, Harvard’s case is again moving forward.
Harvard moved to dismiss the case entirely, just weeks after the court ordered the University to release six years of undergraduate admissions data for use in the lawsuit.
More recently, a group of current and prospective Harvard College students filed an amicus brief for the lawsuit in support of Harvard’s race-conscious affirmative action policies.
Though the Supreme Court over the summer upheld race-conscious admissions policies, the plaintiffs in this case continue to fight against Harvard’s use of affirmative action. While the odds that the presiding court will rule against Harvard’s use of race-conscious policies are low, the case could set precedent for access to admissions data during litigation.
Here’s who is involved, what has happened so far, and what could come next.
In Nov. 2014, the anti-affirmative action group Students for Fair Admissions filed a complaint alleging that Harvard is “employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program.”
SFFA’s complaint against Harvard claims that it uses racial “quotas” and “racial balancing” in the undergraduate admissions process, which, SFFA argues, disadvantages Asian American applicants and violates Title VI of the Civil Rights Act of 1964.
In the 120-page complaint, SFFA alleges that “Harvard uses ‘holistic’ admissions to disguise the fact that it holds Asian Americans to a far higher standard than other students and essentially forces them to compete against each other for admission.”
The group cites the relatively constant rate of Asian American acceptances to Harvard over the past decade as a part of the basis for the group’s claims that the College uses “racial balancing.”
Additionally, the group claims more generally that racial preferences are never justified in the admissions process despite previous Supreme Court rulings upholding the practice. “The Supreme Court’s jurisprudence in this area has been built on mistakes of fact and law,” the organization wrote.
Harvard responded to the suit with a letter in February 2015, denying the allegations of racial discrimination and defending its “holistic” admissions process. Harvard administrators, including University President Drew G. Faust, have continuously spoken out in support of the University’s policies.
Speaking at Memorial Church’s morning prayers in September 2015, Faust said, “Our vigorous defense of our procedures and of the kind of educational experience they are intended to create will cause us to speak frequently and forcefully about the importance of diversity in the months to come.”
The plaintiff in the lawsuit, Students for Fair Admissions, is a nonprofit organization formed to “promote and protect the right of the public to be free from discrimination on the basis of race in higher education admissions,” according to the group’s complaint.
Edward Blum serves as the group’s president. He is also the president of the Project on Fair Representation, another litigious nonprofit that has been involved in admissions lawsuits with other universities, including the Fisher case.
The plaintiff in that case, Abigail Fisher, was listed as SFFA’s secretary in the group’s 2013 tax exemption request, while her father was listed as the organization’s treasurer. According to the organization’s articles of incorporation included in their 2013 exemption request, SFFA “has no members” despite calling itself a “membership group of more than 20,000 students, parents, others” on its website.
An unnamed Asian American applicant who was denied admission to Harvard in 2014 is also listed in the original complaint as one of SFFA’s members and a plaintiff in the lawsuit. The complaint details that the applicant is a first-generation college student and claims that the applicant “was denied the opportunity to compete for admission to Harvard on equal footing with other applicants.”
Blum was behind several websites launched in 2014 seeking students who claim they were denied admission to Harvard, the University of North Carolina at Chapel Hill, and the University of Wisconsin-Madison because of their race. Blum and his various organizations are engaged in other ongoing lawsuits—the Project on Fair Representation filed a complaint against UNC Chapel Hill’s admissions policies in November 2014, as well.
Since SFFA filed the complaint, a host of outside groups have sought to influence the court’s decision. In the meantime, Harvard and SFFA have battled for access to each other’s internal information in the discovery process.
A group of prospective and current Harvard students represented by the nonprofit pro bono legal group Lawyers’ Committee for Civil Rights and Economic Justice motioned in April 2015 to intervene in the ongoing lawsuit in support of Harvard. In their motion, the students defended Harvard’s consideration of diversity in assembling its admittance pool.
While a panel of judges ultimately denied the group’s intervention in December 2015, the judges did grant the students amicus status, which allowed them to submit briefs and participate in oral arguments in court.
In May 2015, the suit’s presiding judge ruled that both sides would have a 10- to 12-month discovery process during which they could gather information and experts for use in court. Legal counsel for SFFA requested that the organization have access to Harvard admissions data, such as applicant names, personal essays, and “comments from alumni interviewers.” The judge did not grant SFFA access to this information.
Also in May 2015, a collection of 64 Asian American groups filed a complaint against Harvard with the U.S. Departments of Education and Justice. The complaint cited the Students for Fair Admissions lawsuit and called for a federal investigation into what they claim is the College’s “unlawful use of race” during the admissions process.
Just a couple months into discovery, Harvard’s legal counsel requested in the summer of 2015 that the court delay the lawsuit in anticipation of the Supreme Court ruling on Fisher vs. Texas and the precedent it would set for affirmative action. The case was pending for nearly a year until the Court’s ruling in June 2016.
Harvard has been involved in the Fisher case since November 2015, when the University filed an amicus brief in support of the UT Austin’s use of race-conscious admissions policies to create a diverse student body, writing that a diverse student population is “a compelling interest that justifies race-conscious admissions in higher education.”
Harvard Law School Dean Martha L. Minow also filed an amicus brief in conjunction with her legal counsel and Yale Law School Dean Robert C. Post ’69 last November in support of UT Austin. They wrote that a ruling against using race as one factor in a “holistic” admissions process would have “devastating” effects.
The Supreme Court ruled 4-3 in support of UT Austin and its use of race-conscious admissions policies on June 23, 2016. Justice Anthony M. Kennedy said in his opinion after the decision that while affirmative action and other race-conscious policies can be constitutional, universities have an “ongoing obligation to engage in constant deliberation and continued reflection” on their policies and that such policies must be able to withstand “strict scrutiny.”
Harvard administrators celebrated the decision, and legal counsel for SFFA and the University met to discuss the ruling and the status of the pending lawsuit in July.
Following the status conference in July, Student for Fair Admissions’ legal counsel filed a letter requesting the release of eight years of admissions data from Harvard for use in discovery. Harvard filed a letter in response, arguing that releasing that much data would be both excessive and would infringe on privacy.
The presiding judge ordered in early September that Harvard must provide six cycles of admissions data, including student files, from the 2009-2010 admissions cycle through to the 2014-2015 cycle. The order also requires Harvard to provide reports from any internal or external investigations regarding alleged discrimination against Asian Americans.
In late September, Harvard’s legal counsel filed two motions, one to dismiss the case entirely and another to dismiss two counts of SFFA’s original complaint. Harvard argues that SFFA does not have the legal grounds to represent its members because it “cannot demonstrate that its members control the organization and that it genuinely represents them.” SFFA responded with a letter asking the court to refrain from judgment on the new motions on the grounds that they are “procedurally improper.”
Then, in mid-October, Harvard notified the hundreds of thousands of students who applied to the College in that time frame that it will share their application data with SFFA beginning on Oct. 28, omitting their names and Social Security numbers.
Later in October, current and prospective College students filed an amicus brief supporting Harvard's race-conscious affirmative action policies.
According to the court-set agenda, the discovery process could continue until 2018. The plaintiff and defendant would then have the opportunity to file motions to dispose the case and any resulting opposition and reply briefs.
While under no obligation to do so, the presiding judge could rule on Harvard’s most recent motions before then, causing the timeline of the case to change or even for the case to end.
Harvard’s release of admissions data, scheduled to have started last week, could also affect the pace of the suit, as well as set a precedent for the use of collegiate admissions data in lawsuits, according to Peter F. Lake ’81, a professor at the Stetson University College of Law.
“I think that the generalized attack on race-conscious admissions as being unlawful is now essentially over for this generation,” he said. “I think we are going to see courts looking more at what’s happening inside the the inner sanctum of the admissions process.”
—Staff writer Brittany N. Ellis can be reached at email@example.com. Follow her on Twitter @britt_ellis10.
This article has been revised to reflect the following correction:
CORRECTION: November 7. 2016
A previous version of this article incorrectly indicated that the Supreme Court ruled 5-4 on the case Fisher vs. Texas. In fact, it ruled 4-3; Justice Elena Kagan recused herself from the case.