Posternak Blankstein & Lund LLP is now Arent Fox. Read the press release

Federal Judge Upholds Harvard’s Race-Conscious Admissions Policy

In a much anticipated decision, Judge Allison Burroughs of the US District Court for the District of Massachusetts held this week that Harvard College’s admission’s policy, which considers race among many factors, is lawful. The decision stems from a lawsuit contending that the policy violated Title VI of the Civil Rights Act of 1964 by discriminating against Asian-American applicants. 

“[D]iversity” of “all types, including racial diversity,” Judge Burroughs stressed, “is important in education.”

The evidence at trial was clear that a heterogeneous student body promotes a more robust academic environment with a greater depth and breadth of learning, encourages learning outside the classroom, and creates a richer sense of community ... The benefits of a diverse student body are also likely to be reflected by the accomplishments of graduates and improved faculty scholarship following exposure to varying perspectives.

Harvard aims to promote racial diversity, but without racial quotas. Instead, Judge Burroughs explained:

  • Harvard tracks how each class is shaping up relative to prior years, with an eye toward achieving a level of racial diversity that will provide its students with the richest possible experience.
  • It monitors the racial distribution of admitted students, in part, to ensure that it’s admitting a racially diverse class that will not be overenrolled based on historic matriculation rates that vary by racial group.
  • And, admissions officers may consider race when they are assigning an applicant’s overall rating, but race has no specified assigned value and is never a negative attribute.

Harvard’s program, Judge Burroughs held, withstands strict scrutiny, because (1) Harvard’s interest in student body diversity is substantial and compelling; (2) Harvard narrowly tailored its program to promote that interest, by using race in a flexible, non-mechanical way and by considering race as a plus factor in Harvard’s individualized assessment of each applicant; (3) the policy doesn’t unduly burden Asian-American applicants; and (4) no adequate, workable, sufficient fully race-neutral alternatives are available.

Judge Burroughs recalled the Supreme Court expectation, articulated in 2003, that in 25 years, it wouldn’t be necessary to use racial preferences to achieve a diverse student body. But, she observed that, as the effects of entrenched racism and unequal opportunity remain obvious, that “goal might be optimistic and may need to change.”

Still, Judge Burroughs is hopeful.

The students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents. They will have the opportunity to know and understand one another beyond race, as whole individuals with unique histories and experiences. It is this, at Harvard and elsewhere that will move us, one day, to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet. Until we are, race conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding.

Judge Burroughs’ decision likely will be appealed to the First Circuit. And, ultimately, it will be up to the Supreme Court to resolve this highly contentious issue.


Continue Reading