Students for Fair Admissions v. President and Fellows of Harvard College, No. 19-2005 (1st Cir.) November 12, 2020.
An advocacy group, questioning whether Harvard College’s admissions practices were unlawfully racially based, brought suit in federal district court. The group was unsuccessful there and that result has not been disturbed on appeal.
In general, racial ‘balancing’ in admissions practices is impermissible, as it is little other than impermissible racial “quota” practices by another name, but the same ratio of applicants to admissions over time does not necessarily reflect a quota.
Over a ten year period, Harvard’s racial percentages fell within a narrow range. Harvard utilized one page summaries to illustrate the racial composition of classes.
The court found that the number of admitted Asian applicants increased from 3.4% in 1980 to 20..6 in 2019 while applicants ranged from 4.1% in 1980 to 22.5% in 2014. Without elaboration, the court concluded that this is inconsistent with a quota. The court observed that the proportion of asian applicants to Asian admissions remained consistent over time.
The court observed that stasis in the composition of classes reflects stasis in the pool of applicants. Without more, the First Circuit found no error in the district court’s determination that neither quotas or balancing were in play in Harvard’s admissions procedures.
The First Circuit found unobjectionable Harvard’s continuous monitoring of admissions as permissible in supporting its diversity goals without evidencing balancing or quota practices
The student advocacy group argued that Harvard applied race as a “mechanical plus” precluding individual considerations and permitting race as a decisive factor in admissions.
Where race can benefit any applicant and where race is individualized, mechanica arguments fail. The court observed that racial diversity is not exclusive and has no more prominence than other diversity in Harvard’s contextualized admission practices. The court found Harvard’s practices, which do not employ an impermissible fixed “points” practice, to be holistic with race, neither mechanical nor decisive.
The First Circuit upheld rejection of the argument that race was decisive because other racial groups were admitted in greater numbers than Asians of high academic achievement.
The First Circuit noted that Supreme Court precedent has permitted racial impact greater than that evidenced by Harvar. In one case, eliminating race as an admissions criteria would cause a 72.4% decrease in minority admissions, while in this case the change would be 45%, less than that permitted in the first case.
The First Circuit stressed that race cannot be decisive for minimally qualified applicants but in this case race is not decisive for highly qualified applicants in a competitive process.
The First Circuit rejected the perception of the United states government as amicus that Harvard considers race at every step of its admissions process. The First Circuit rejected the United States’ premise that race may be considered only at only point in the admissions process and found that holistic considerations, including race, may be part of the admissions process throughout.
Similarly, the First Circuit found unavailing the argument that the Supreme Court has found that race as a consideration must have a stopping point because this exhortation was never mentioned in subsequent Supreme Court opinions.
Precedent has never required universities to define an end point for the utilization of race as an admissions criteria and there is no error in Harvard’s not setting a ceiling on admissions.
Harvard’s having crafted, considered, and yet rejected as unworkable proffered alternatives to race in its admissions process does not mean that its evaluations were defective or inadequate.
The First Circuit rejected the claim that Harvard impermissibly treated Asian students less favorably than others.
The presence of some subjectivity in admissions will not establish intentional discrimination, the First Circuit found, citing early discussion fo flexible admissions systems. Any risk of subjective bias training the admissions process is mitigated by the requirement that admission cannot occur except through the vote of a majority of forty members of an admissions committee.
The appellate court found unobjectionable the district court’s failure to find flawed as stereotypical references to Asians as “quiet,” “flat,” or other terms where such language was used concerning applicants from other groups.
The court found no error in changes to admissions rating guidance to employees that race may not be considered an admissions rating criteria, nor was an increase in Asian admissions after the initiation of litigation as guidance is reviewed probative of discrimiation, as admissions guidance is reviewed and revised annually and Asan admissions have been increasing steadily over time.
Worries over inclusion or exclusion of personal ratings were dismissed by the court although the student advocacy group attempted to demonstrate that while inclusion of personal rating did not impact the likelihood of an Asian applicant’s admission the exclusion of this information would have a negative impact.
The essence of correlation between the rating and admission does not compel a finding of causation or ‘influence.’
The district court did not err in considering several sources of evidence indicating that correlation but not causation was established. The First Circuit upheld the district court’s conclusion that whether or not the personal rating is included in admission has no material effect, varies over time, and is not always negative.
The district court opined that implicit bias was possible for unsupported and speculation about the explanation for significant variance in modes. The First Circuit found this exploration would not compel setting aside, as plain error, the conclusion that there was no intentional discrimination.