Harvard Won This Round, but Affirmative Action Is Weak

A judge ruled that the university’s use of race in admissions was not discriminatory. But decades of case law have already severely limited the scope of such policies.

Bloomberg / Getty / Katie Martin / The Atlantic

Precedent is powerful; it was always unlikely that District Court Judge Allison Burroughs was going to break it. In a much-anticipated 130-page decision released yesterday, Burroughs ruled that Harvard University’s admissions practices do not discriminate against Asian American applicants. The high-profile lawsuit had been brought by Students for Fair Admissions, whose president, Edward Blum, has orchestrated several court cases aimed at dismantling the use of race in admissions.

The win for Harvard reinforces four decades of case law on race-conscious admissions, but it also, importantly, shows how restricted the practice is, what it can and can’t do. Affirmative action is a tool to help diversify some highly selective campuses, but it is a highly limited one.

In its complaint, SFFA accused Harvard of a range of discriminatory practices including racial balancing, using race as a deciding factor in admissions, and failing to use race-neutral alternative policies to achieve a diverse student body. Burroughs combed through each claim and found that the university adhered to the rigidly defined acceptable use of race in admissions. Both Harvard and affirmative-action advocates cheered the decision. “It represents a significant victory not merely for Harvard, but also for all schools and students, for diversity, and for the rule of law,” Harvard’s lawyer, William Lee, said in a statement.

There was a caveat near the bottom of Burroughs’s ruling, though. Harvard’s admissions policy, and its use of race in admissions, withstands strict scrutiny—the highest standard of review the court uses in deciding discrimination complaints—she wrote, but “it is not perfect.” Burroughs suggested that the admissions officers should take bias training and that the university should maintain clear guidelines for how race is used in admissions. “That being said, the Court will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better.”

The fine admissions program Burroughs lauded was doing what it was intended to do: diversify the campus. Harvard’s program has been held up as an example of the proper use of race in admissions for decades, since affirmative action had its landmark test at the Supreme Court in the Regents of the University of California v. Bakke case that was decided in 1978. In that case, the high court ruled that the consideration of race in admissions was constitutional, but race could not be the sole factor for the decision—it needed to be used in concert with other factors.

In case after case the courts have drawn a tight circle where affirmative action can live; the colleges that step outside of it will be ordered back in by a judge. In the Bakke decision, the Court made clear that the use of race in admissions could not be used as a remedy for past discrimination; instead, it had to be used as a tool for diversity—to benefit all the students on campus. An outline of Harvard’s program, the holistic admissions program that it still uses today (with small tweaks made over the years), was appended to the 1978 opinion.

But then black enrollments at Ivy League institutions stagnated. “Black students make up 9 percent of the freshmen at Ivy League schools but 15 percent of college-age Americans, roughly the same gap as in 1980,” a 2017 New York Times analysis found. Only a handful of schools are selective enough to engineer their classes using race as a factor, and the inert statistics of black students at those institutions are in part a result of the limitations on affirmative action placed by Bakke and later court cases. The schools that use race in admissions have become adept at designing their programs to be legally airtight.

Twenty-five years after Bakke, in 2003, Associate Justice Sandra Day O’Connor delivered the opinion of the Court in another affirmative-action case. This time it involved the University of Michigan. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Perhaps by then, the Court opined, a workable alternative to the use of race would have been found.

The year O’Connor was referencing is 2028, less than a decade away, and all the evidence points to the conclusion that the use of race in admissions will still be necessary to achieve a diverse student body. Burroughs notes in her decision that in states where affirmative action has been banned, such as California and Michigan, there have been precipitous declines in black enrollment. “The numbers are probably not what we would like them to be, but still, without affirmative action, they may be a whole lot less,” Kevin Brown, a law professor at Indiana University, told me.

In a statement after Burroughs’s opinion was released, Blum said that SFFA would appeal the decision to the First Circuit Court of Appeals, “and, if necessary, the Supreme Court.” This is where the case has long seemed destined to arrive, bringing with it big questions: Will a more conservative Supreme Court break precedent and eliminate the use of race in admissions? The precedent on the use of race in admissions is strong, but is it strong enough to withstand another fight at the high court?

As a weapon to fight racial discrimination, affirmative action was downgraded from a sword to a dagger by the courts long ago. Going forward, the Harvard case may reinforce that limited strength, or weaken these policies further.