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Tuesday’s Admissions Decision is Only the First Step in a Long Appeals Process, Experts Say

The John Joseph Moakley Courthouse in Boston was the site of the three-week admissions trial.
The John Joseph Moakley Courthouse in Boston was the site of the three-week admissions trial. By Naomi S. Castellon-Perez

Tuesday’s long-awaited ruling on the Harvard admissions case brings one stage of the four-year-old lawsuit to a close — but the case is not expected to end anytime soon.

Edward Blum, president of plaintiff Students for Fair Admissions, vowed to appeal the decision in his statement following Judge Allison D. Burroughs’s ruling, a move experts say is likely to tangle the case in years of further litigation.

Burroughs’s Tuesday ruling upheld Harvard’s race-conscious admissions process as legal. Vinay Harpalani, a law professor at the University of New Mexico, said SFFA’s appeal will likely argue that Burroughs was incorrect in her decision.

“The next step for SFFA, the plaintiff, is going to be to appeal,” Harpalani said. “Harvard is, of course, going to respond.”

Blum said in a press release that SFFA plans to take the case as far as they need to in an attempt to get a ruling in their favor.

“SFFA will appeal this decision to the First Court of Appeals and, if necessary, to the U.S Supreme Court,” Blum said in the press release.

Tuesday’s ruling found that Harvard does not illegally discriminate against applicants on the basis of race. That finding rejects anti-affirmative action group SFFA’s allegations that Harvard systematically discriminates against Asian Americans in its admissions process.

SFFA first filed suit against the University in November 2014, and the case went to trial in October 2018. It featured three weeks of testimony from students, administrators, expert witnesses, and others. Burroughs took almost a year before issuing her ruling, which was expected earlier this summer.

Lawyer and legal analyst Jeffrey R. Toobin ’82 said a panel of First Circuit Court judges would hear the appeal. Whichever side the panel rules against would then have the option to pursue a further appeal. That appellate process may include a hearing before the entire First Circuit bench or move directly to the Supreme Court.

“It’ll take months for the First Circuit to get and resolve this case, so there’s nothing imminent, but this decision is really the overture, not the finale,” Toobin said.

The appellate judges will be largely limited to contesting Burroughs’s legal reasoning rather than her findings of fact, according to Peter McDonough, the general counsel of the American Council on Education. The facts of the case are typically frozen at the trial phase.

Some experts said Burroughs’s opinion in the case — a 130-page ruling — is particularly comprehensive, making the decision less likely to be overturned by the circuit court. Oren M. Sellstrom, a member of Lawyers for Civil Rights, a group that backed Harvard in the case, said he believes the appeals court is likely to defer to Burroughs.

“It’s a very meticulous opinion that combs through the factual record in great detail,” Sellstrom said. “The appeals courts give deference to factual findings made by district court judges, so the fact that Judge Burroughs held a full trial and produced an opinion that meticulously goes through the record will make that very difficult to overturn on appeal.”

Richard D. Kahlenberg ’85, an expert witness for SFFA on race-neutral alternatives to achieve diversity, however, said that the appeals court may interpret the facts differently. Kahlenberg argued during the case that there are race-neutral means of achieving diversity in admissions, including socioeconomic affirmative action.

“Judge Burroughs did include some of the information about the socioeconomic affirmative action simulations, that I think an appeal will be quite interesting to higher court judges,” Kahlenberg said in a Tuesday interview. “There are findings of fact in the case that I think will be — that could be — viewed differently by different judges.”

SFFA’s promise to appeal also ensures the case will carry on for several more years.

The appellate process for the nearly five-year-old lawsuit may last years as both sides file additional materials and arguments. Mishell B. Kneeland — a lawyer on behalf of defendant University of Texas at Austin in the landmark Fisher II case, on which Burroughs staked her decision — said the case could spend as much time in the First Circuit Court as it did in district court.

"I would say at least five years — four to five years,” Kneeland said. “By the time it gets out of the First Circuit, that's four years before it's being briefed to the Supreme Court, which is long. The wheels of justice do not turn quickly, unfortunately.”

Peter F. Lake ’81, a professor of higher education law at Stetson University, had a somewhat shorter estimate for the duration of the appeal length in the First Circuit Court — 18 months to two years — to make it through briefings, arguments, and a ruling.

Whichever side loses the appeal in the First Circuit Court can petition the case to the Supreme Court. Ultimately, though, the justices have discretion over whether or not they will hear the case.

Toobin said taking the case to the Supreme Court would fulfill what he believes is SFFA’s ultimate goal.

“The agenda here always has been to get this case to the U.S. Supreme Court, where five conservatives can outlaw the use of race under any circumstances in university admissions,” Toobin said.

Correction: Oct. 3, 2019

A previous version of this article misstated Richard D. Kahlenberg's class year.

—Staff writer Camille G. Caldera can be reached at Follow her on Twitter @camille_caldera.

—Staff writer Delano R. Franklin can be reached at Follow him on Twitter @delanofranklin_.

—Staff writer Samuel W. Zwickel can be reached at Follow him on Twitter @samuel_zwickel.

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