Harvard’s Affirmative Action Plan Upheld by First Circuit: Victory Now But What Will Come Next?

November 16, 2020
Firm Publication

On November 12, the United States Court of Appeals for the First Circuit upheld the use of race by Harvard College in its student admissions program against a challenge brought by Students for Fair Admissions (SFFA), a group representing the interests of Asian American students.

The First Circuit held that Harvard had demonstrated that it has a compelling interest in using race in its admissions program and that its use of race is narrowly tailored as required by the Supreme Court’s precedent. This thorough, 104-page-long opinion, issued only eight weeks after the First Circuit heard oral argument, carefully follows the Supreme Court’s precedent in its Grutter and Fisher decisions.

SFFA has announced that it will seek a review of the First Circuit’s opinion from the United States Supreme Court and ask the Supreme Court to use this case as an opportunity to overturn Grutter, Fisher and Justice Powell’s opinion in the landmark Bakke case.

Key Takeaways from First Circuit Decision in Harvard Case

  • Supreme Court precedent is alive and well (for now). The First Circuit carefully followed Grutter and Fisher I and II and used the Supreme Court’s decisions in Gratz and Parents Involved in Community Schools v Seattle Public School District to analyze Harvard’s admissions program and find its use of race constitutional.
  • A college or university that uses race in its admissions policy is well-advised to support that policy with a report or study identifying the educational values the institution seeks to further with its use of race. Harvard completed a report led by the Dean of the College incorporating input from faculty, staff, students and alumni that identified the goals Harvard was seeking to further through building a diverse student body. This report was critical to the First Circuit affirming the district court’s finding that Harvard had established a compelling interest in its use of race.
  • A college or university that uses race in its admissions policy must engage in good faith consideration of workable race-neutral alternatives to show that its use of race is necessary, and therefore narrowly tailored. But such consideration does not require an institution to sacrifice other important educational goals or accept significantly less diversity in its student body. The First Circuit held that to be “workable,” a race-neutral alternative has to provide the institution with the same opportunity to achieve its other educational values in admissions and to attain close to the same level of diversity.
  • An associational plaintiff does not pack the same punch as an individual claiming injury. SFFA failed to come forward with any named individual Asian American student who had allegedly been denied admission to Harvard based on alleged racial discrimination, a fact that was noted by the First Circuit. While the First Circuit nonetheless found SFFA to have established associational standing, it noted, in addressing SFFA’s claim of intentional discrimination, that Harvard had brought numerous witnesses who had testified credibly that they had never witnessed or participated in discrimination against Asian American students and SFFA could only counter with statistical analysis.

What to Watch for Next Following First Circuit Decision in Harvard Case

  • SFFA will certainly ask for the Supreme Court to review the case. It is hard to predict whether the Court will grant certiorari review. There is no split in authority among the Courts of Appeals, which is the usual criteria used by the Court for granting certiorari. For the reasons stated below, however, the Court could grant certiorari in the absence of a circuit split, as it did when it granted review in Fisher.
  • It is easier to predict what the Supreme Court will ultimately do with race-conscious college admissions plans than whether it will review the Harvard It is highly likely that the Supreme Court, as currently constituted, will rule that colleges are not permitted under the Constitution to consider race in their student admissions policies for the educational benefits of a diverse student body.
  • With the changes in membership since race-conscious college admissions plans were last considered by the Supreme Court in Fisher II, it is no longer clear that there are five justices on the Court who will support the proposition that race can ever be used to promote the educational benefits that flow from diverse student bodies. That is, the Court could overturn Bakke, Grutter and Fisher and hold that the use of race in college admissions is not a compelling interest.
    • Justices Breyer and Sotomayor have held that colleges have a compelling interest in using race to attain the educational benefits of diversity. Chief Justice Roberts and Justices Thomas and Alito have all stated in dissenting opinions that colleges cannot support the use of race by claiming a compelling interest in the educational benefits of diverse student enrollments.
    • Four current members of the Court (Justices Kagan, Gorsuch, Kavanaugh and Barrett) have not had to rule, while on the Court, on the question of race-conscious college admissions programs.
      • Justice Kagan can be expected to agree with Justices Breyer and Sotomayor (and current Supreme Court precedent) that race can be used to further the educational benefits of a diverse student body if its use is narrowly tailored.
      • Justices Gorsuch, Kavanaugh and Barrett are expected to be much more skeptical of current precedent and to rule more in line with Chief Justice Roberts and Justices Thomas and Alito. If these justices are inclined to rule that the educational benefits of diversity are not a compelling interest, then they will have to consider the role of stare decisis when faced with the question of overruling Grutter and Fisher.
        • Only two of the three newest justices need to be willing to overrule Grutter and Fisher for SFFA to obtain an entire victory from the Court in holding that colleges may not use race as a factor in admitting students.
  • It is also possible that the Supreme Court could grant certiorari in the Harvard case and rule against Harvard without overruling Grutter and Fisher. The Court could hold that Harvard’s admissions plan is not sufficiently narrowly tailored and therefore fails to meet the current constitutional standard, without having to overrule its precedent. SFFA’s arguments that Harvard engages in racial balancing and has failed to identify a logical stopping point for its use of race are arguments that have long appealed to the justices who dissented in Gutter and Fisher.
  • Because of the high probability that the Court, as currently constituted, will overrule Grutter and Fisher, the more pressing question may be when the Supreme Court will seize the opportunity to review its precedent, not whether it will do so.
  • The Harvard case is the first of several SFFA can be expected to bring to the Supreme Court. SFFA is the plaintiff in a case challenging the admissions plan at the University of North Carolina; the trial started on November 9 in that case and is expected to conclude before the end of the month. SFFA has also recently brought suit against the University of Texas at Austin. Most recently, SFFA moved to intervene in the suit brought by the United States challenging the use of race by Yale in its admissions program. Therefore, SFFA is currently challenging the race-conscious admissions plans at two public universities and two private universities that are located in the jurisdiction of four different courts of appeals.
  • SFFA’s petition for certiorari in the Harvard case is not due until mid-April2021 under the Supreme Court’s COVID-19 filing rules. A petition filed in April would not be considered for decision by the Supreme Court, if at all, until the Court’s October 2021 term. If, however, SFFA filed its petition by sometime in early January, and the Court grants review, it is possible that the case could be heard this Term, with a decision handed down by late June.

This is an area to watch closely. If you should have any questions about the foregoing, please contact the author.