Students supporting affirmative action flocked to Washington to protest the Supreme Court’s decision ending the practice in higher education.
Students supporting affirmative action flocked to Washington to protest the Supreme Court’s decision ending the practice in higher education. By Julian J. Giordano

Did Harvard Intentionally Discriminate? In Admissions Discrimination Suit, the Supreme Court Doesn’t Say

When the Supreme Court effectively struck down affirmative action in higher education last month, it made no mention of a claim that Harvard illegally discriminated against Asian American applicants — an allegation that had been at the heart of the case for nearly a decade.
By Cam E. Kettles and Claire Yuan

When the Supreme Court effectively struck down affirmative action in higher education last month, it made no mention of a claim that Harvard illegally discriminated against Asian American applicants — an allegation that had been at the heart of the case for nearly a decade.

The decision did not disturb a lower court decision that Harvard had not illegally discriminated against Asian American applicants, instead leveling a broader judgment on higher education — that race-conscious admissions themselves are inherently discriminatory.

The majority opinion presented by Chief Justice John Roberts ’76 found that Harvard’s and the University of North Carolina’s race-conscious admissions policies violate the Equal Protection Clause of the 14th Amendment.

“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points,” Roberts wrote. “We have never permitted admissions programs to work in that way, and we will not do so today.”

But when the anti-affirmative action group Students for Fair Admissions first sued Harvard, its complaint centered on claims that the University illegally discriminated against Asian American applicants in its admissions process.

This claim of anti-Asian American discrimination would come to dominate the public face of SFFA’s case — though according to Jonathan Feingold, an associate professor at the Boston University School of Law, it was secondary to the group’s end goal.

“SFFA was strategically marshaling a claim of anti-Asian discrimination, not to remedy anti-Asian discrimination but to discredit and stigmatize affirmative action,” Feingold said.

‘A Far Higher Standard’?

In its 2014 complaint, SFFA accused the College of “intentionally and improperly discriminating” against Asian American applicants in its admissions process, including by employing character ratings influenced by racial stereotypes and requiring Asian American applicants to meet a higher threshold in academic and extracurricular accomplishments.

“Statistical evidence reveals 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 complaint read.

Intentional discrimination occurs when the accused party engages in differential treatment motivated by race. In such legal proceedings, the burden of proof falls on the plaintiff, SFFA, to provide evidence of intentionality on the part of the defendant, Harvard.

SFFA pointed to the numbers, which indicated that Asian American applicants on average reported more impressive academic and extracurricular resumes — but were admitted at lower percentages.

During the screening process, Harvard admissions officers assigned ratings to each applicant across approximately 14 categories, including academic achievement, extracurricular involvement, athletic prowess, strength of character, and “personal” and “overall” ratings. Ratings ranged from 1 — the highest score an applicant can receive — to 6 — the lowest.

According to the district court’s findings of fact, 60 percent of Asian American applicants were given academic ratings higher than 3+ compared to 46 percent of white applicants. In the extracurriculars category, 28 percent of Asian American applicants received a 2 or higher, compared to 25 percent of white applicants.

A 2013 internal Harvard report also found that Asian American applicants received significantly higher test scores, higher grades, and better overall scores from alumni interviews. When the report surfaced during the 2018 trial, SFFA honed in on its conclusions while Harvard maintained that the report was inconclusive and incomplete.

The report indicated that there was only one of 10 characteristics in which white students on average performed significantly better than their Asian American counterparts: their personal qualities.

According to the district court, while 22.6 percent of white applicants received a personal rating of greater than 3+, 18 percent of Asian American applicants received the same — a disparity of about 4.6 percentage points.

SFFA alleged these statistical discrepancies were evidence of a penalty imposed on Asian American applicants that did not exist for their white counterparts.

This year, the College’s admitted class was 29.9 percent Asian American — a record high percentage. Harvard College is approximately 22.6 percent Asian American, as of fall 2022 data.

But SFFA claimed that if Harvard admitted students only based on academic qualifications, that figure would spike to more than 51 percent. That discrepancy, SFFA alleged, indicated intentional discrimination by Harvard’s admissions program against Asian American applicants.

Despite the numbers SFFA presented, the anti-affirmative action group had little chance of bringing a successful claim of illegal discrimination, Feingold said, “because you effectively have to prove that the defendant intended to negatively affect a particular racial group.”

“As a legal matter, it was going to be difficult for SFFA to actually prove that Harvard unlawfully discriminated against Asian Americans because there was no smoking gun evidence,” Feingold said.

‘No Intentional Discrimination’

Harvard categorically denies all allegations of intentional discrimination — and the lower courts agreed.

When the case came before the U.S. District Court of Massachusetts in 2019, federal judge Allison D. Burroughs found that the school’s consideration of race did not violate the Constitution.

“The Court sees no evidence of discrimination in the personal ratings save for the slight numerical disparity itself,” she wrote in her legal opinion. “The statistical disparity is relatively minor and can be at least partially explained by a variety of factors including race-correlated inputs to the rating such as teacher and guidance counselor recommendations.”

“Harvard’s current admissions policy does not result in underqualified students being admitted in the name of diversity,” Burroughs wrote.

Kimberly West-Faulcon — a professor at Loyola Law School, Los Angeles — said SFFA never presented any evidence of intentional discrimination on the University’s part.

“There are no examples of any contemporary, intentional, racist, racially exclusionary anti-Asian American acts by Harvard,” West-Faulcon said.

Burroughs found no evidence of intentional discrimination by Harvard, writing that the school’s admissions system “does not explicitly prioritize any particular racial group over any other.”

Still, Burroughs found that Harvard’s consideration of race favored Black and Hispanic applicants in a way it did not for Asian American or white applicants: Race was a determinative tip for approximately 45 percent of admitted African American and Hispanic applicants.

She ruled that this use of race fell within constitutional limits, writing that Harvard “has shown that its admissions program was employed to promote diversity, which is not an invidious discriminatory purpose” — and that, contrary to SFFA’s arguments, no race-neutral alternatives could have achieved the same results.

“​​At least 10% of Harvard’s admitted class, including more than one third of the admitted Hispanics and more than half of the admitted African Americans, would most likely not be admitted in the absence of Harvard’s race-conscious admissions process,” Burroughs wrote.

She also found that eliminating early action admissions and preferences for athletes and children of donors, legacies, and faculty, increasing high school outreach, offering more financial aid, and admitting more transfer students would all “likely have no meaningful impact on racial diversity.”

SFFA wasn’t satisfied and sought to appeal the district court’s decision — but to no avail, as one year later, the First Circuit Court of Appeals handed down another victory for Harvard.

Federal judges Jeffrey R. Howard and Sandra L. Lynch wrote in their decision that Burroughs correctly ruled that Harvard did not engage in racial balancing and did adequately consider race-neutral alternatives.

Though the decision marked a serious setback for SFFA, the group appealed again — this time seeking an opinion from the nation’s highest court.

While handing SFFA a victory in its anti-affirmative action claim, the Supreme Court’s ruling in June made no mention of the intentional discrimination claim.

“The Supreme Court — the majority, at least, in Justice Roberts’ opinion — ignored or avoided, omitted the legal claim that Harvard was intentionally discriminating against Asian Americans,” Feingold said.

Vinay Harpalani, a law professor at the University of New Mexico, noted the Supreme Court’s lack of intrusion upon facts previously established in the lower courts.

“They didn’t really disturb the finding that there was no intentional discrimination against Asian Americans,” Harpalani said.

Instead, the Court’s majority opinion called Harvard’s admissions practices “well intentioned and implemented in good faith,” praising the “commendable goals” behind the process.

West-Faulcon found the omission less than praiseworthy.

“What we are left with is an opinion that did not engage with the very explicit and detailed factual findings at the trial court level,” West-Faulcon said. “That is disappointing.”

Despite this, according to Mark V. Tushnet ’67 — a professor emeritus at Harvard Law School — the Court’s ruling means Harvard engaged in discrimination “almost by definition” in using race as a determinative factor in admissions.

Seth P. Waxman '73, who defended Harvard in the lawsuit brought by anti-affirmative action group Students for Fair Admissions, denied claims that the College discriminates against Asian American applicants.
Seth P. Waxman '73, who defended Harvard in the lawsuit brought by anti-affirmative action group Students for Fair Admissions, denied claims that the College discriminates against Asian American applicants. By Julian J. Giordano

“The whole point of the majority opinion is that impermissible discrimination occurs whenever you take race into account in making a decision,” Tushnet said.

A claim of intentional discrimination, he added, was not necessary for the Court to find Harvard’s race-conscious admissions policies unconstitutional.

During oral arguments in October, Harvard attorney Seth P. Waxman ’73 conceded that “for some highly qualified applicants,” race can be “the determinative factor,” but he wholly denied claims of discrimination.

“The fact that Asian Americans got a marginally, on average, a marginally lower personal rating score is no more evidence of discrimination against them than the fact that they got a marginally higher rating than any data can show on academics and extracurriculars,” Waxman said.

Used ‘As a Hook’

Despite lower court emphasis on the intentional discrimination claim, by the time the case reached the Supreme Court, that allegation had all but fallen out of SFFA’s legal argument.

According to Harpalani, the illegal discrimination claim was primarily useful fodder for SFFA to escalate its lawsuit through the hierarchy of courts, but before the nation’s highest court, the question was “basically legally insignificant.”

“That claim of intentional discrimination against Asian Americans was always very weak,” Harpalani said. “I think SFFA knew this, but they used that as a hook to bring in the affirmative action claim.”

“That was intentional by SFFA,” he said.

SFFA did not respond to a request for comment.

West-Faulcon also speculated that the claims of intentional discrimination were primarily about public attention and access to the court itself.

“At the Supreme Court level, SFFA shifted from any focus on white advantage compared to Asian American penalty, and shifted to ‘Please overrule Bakke and Grutter. Please make it so Harvard and UNC have no capacity to be race-conscious for purposes of inclusion,’” she said.

SFFA’s goal, West-Faulcon said, was to have the Supreme Court conflate “race used for the purpose of inclusion and race used to exclude” in hopes it would lead to the fall of affirmative action.

“The question of whether Asian Americans were the victims of intentional race discrimination was never really the point for SFFA,” West-Faulcon said.

By framing the initial argument in terms of illegal discrimination, Harpalani said, SFFA could galvanize widespread support — among Asian Americans in particular — and push the suit through to the Supreme Court.

Anti affirmative-action protesters demonstrated in Washington during oral arguments in October 2022.
Anti affirmative-action protesters demonstrated in Washington during oral arguments in October 2022. By Julian J. Giordano

There, the sitting conservative majority would be willing to consider SFFA’s ultimate goal: eliminating affirmative action.

“If you look at the Supreme Court, their first claim is, ‘Grutter should be overruled,’” Harpalani said. “They mentioned that at the bottom of the original complaint, they say that, but it’s like the fifth thing. At the Supreme Court, it’s the first thing.”

The gambit worked.

On June 29, the Court decided 6-2 against Harvard to severely limit affirmative action across higher education admissions, all but overturning its earlier 2003 decision in Grutter v. Bollinger that found affirmative action constitutional to ensure a diverse student body.

Harpalani said the Supreme Court “basically abrogated Grutter.”

“The justices — Roberts, Thomas, Alito — really did not like Grutter,” he said. “They did not like the Court’s precedent on affirmative action, so they focused on that.”

‘Written as a Racial Justice Decision’

Though SFFA framed the legal battle as a fight on behalf of Asian American applicants, some experts suggested the decision may only create further obstacles for them.

“For many Asian Americans, admissions are only going to become harder,” Feingold said. “And no one is going to have — at least as a function of this opinion — an admissions process that reduces all of the unearned racial benefits that are constantly flowing to white applicants.”

Feingold referenced the model minority myth — the stereotype that Asian Americans as a monolith are successful — noting that some Asian American ethnic groups on average underperform on standardized tests as a result of structural disadvantages.

Rather than producing fairer outcomes for applicants belonging to these groups, he added, the Court’s decision will prevent Harvard from accounting for these effects.

“Now, by making it harder for a place like Harvard to take race into account, it means that those Asian American groups that on average underperform on the SAT — Harvard’s not going to be able to account for why that is,” Feingold said. “They’re simply going to have lower SAT scores.”

Feingold pointed to the “irony” of the Court’s decision in this case — where “the narrative was ‘Harvard is doing something that is harming Asian Americans.’”

Aziza Ahmed, a professor at the Boston University School of Law, also said there were inconsistencies in the stated mission of the case and the process through which it was litigated and decided.

“There is a mismatch between how the decision is written as a racial justice decision — the Supreme Court is against racial stereotyping and against racial bias — and how the case is actually brought,” Ahmed said.

When Harvard and SFFA hired experts to simulate the racial composition of the College Class of 2019, the number of African American and Hispanic students admitted dropped at least seven and four percentage points, respectively, compared to the actual class. The number of Asian American admits increased by at least three percentage points in the projections.

The greatest increase — in both projections — was for white admits, with an increase of six percentage points in SFFA’s model and eight percentage points in Harvard’s.

Feingold called the Court’s decision a step toward “an affirmative right to inequality.”

“Race and racism are arguably the most powerful phenomena in American society that shape literally every aspect of a student’s private and public lives,” he said. “You have to account for race.”

—Staff writer Cam E. Kettles can be reached at Follow her on Twitter @cam_kettles.

—Staff writer Claire Yuan can be reached at Follow her on Twitter @claireyuan33.

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