A federal appeals court in Boston ruled today that Harvard's "race-conscious admissions program" does not violate federal law.
The ruling by the US Court of Appeals for the First Circuit upholds a US District Court judge's similar ruling that Harvard did nothing wrong in considering race as one of several possible criteria in deciding whom to accept.
However, the court also ruled that the group that sued Harvard, Students for Fair Admissions, had the legal right to bring the case, which means it could try appealing to the US Supreme Court.
The suit, brought by a group founded by three white people, alleged Harvard had discriminated against Asian-Americans through its admissions policies. The group, which over the course of its litigation opened its membership and now claims some 20,000 members, was backed by the US Department of Justice, which will gain new leadership in January.
In its ruling, the court provided an overview of the detailed funneling of rankings from test scores, interviews, grades and other data by which Harvard officials whittle down roughly 100,000 annual applicants to about 2,000 potential students. Once at that point, officials then used a series of extra criteria to shrink that list down further, to the roughly 1,600 students who will actually be offered admission - including race, all while considering frequent updates from the school about the overall demographic characteristics of the potential incoming class.
The court concluded that Harvard met the requirement of federal anti-discrimination laws - and federal court decisions - that using race as one potential factor in admissions decisions "must further a compelling interest" and that it must be "narrowly tailored" and not an automatic deal breaker for specific applicants nor a formal quota system.
The court noted that the Supreme Court has held, "attaining student body diversity may be a compelling interest, and Harvard proved it has made diversity part of its core mission of educating future leaders since the 19th century.
The court determined that Harvard had "identified specific, measurable goals it seeks to achieve by considering race in admissions," in part through a detailed 2018 report on the issue, that diversity would help Harvard students better prepare for a diverse world and even lead to better original research stemming from a diversity of opinion.
These goals make clear that Harvard's interest in diversity "is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," but "a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."
The court continued that race was only one element of the school's attempt at ensuring diversity, that it also sought diversity by ensuring students came from across the country (ironically originally used as a way to reduce the number of Jewish students), different economic levels, religions and family circumstances.
And because race by itself does not provide the final determination of whether one applicant gets in and because Harvard was only reaching for a goal of diversity without setting an actual quota, its admissions policy meets federal standards, the court said.
First, the court noted that the percentage of Asian-American students, the people SFFA is purportedly fighting for, both as applicants and as accepted students, rose dramatically from 1980 to 2019 - from 3.4% of applicants to 20.9% in 2019 and from 4.1% of students offered acceptance in 1980 to a high of 22.5% in 2014. The court noted similar types of numbers for Hispanic and African-American applicants.
It is the opposite of what one would expect if Harvard imposed a quota.
Information from this sheet is periodically shared with the full admissions committee, and the committee uses this information in part to ensure that there is not a dramatic drop-off in applicants with certain characteristics -- including race -- from year to year. Harvard keeps abreast of the racial makeup of its admitted class in part because doing so is necessary to forecast yield rates. The yield rate is the percent of admitted applicants who accept an offer of admission. Empirically, Asian American and white students accept offers of admission at higher rates than African American, Hispanic, Native American, and multiracial applicants.
The court continued that Harvard's use of distributing ongoing "yield" data for various groups to officials considering applicants is also OK:
Applicants with different demographics accept offers of admission at different rates. For example, applicants from "Sparse Country" [states with low populations, mostly in the middle of the country] accept offers of admission at lower rates than other applicants. Engineering admittees yield at lower rates. And applicants of different races also enroll at differing rates. To help manage its class size, Harvard includes geographic data, intended concentration, and race -- in addition to many other factors, like gender, [athlete and legacy] status, and economic status -- on its one-pagers. This is permissible.
Harvard's process does not weigh race so heavily that it becomes mechanical and decisive in practice. Harvard's undergraduate admissions program considers race as part of a holistic review process. This use was previously praised by the Supreme Court as a way of considering race in a non-mechanical way. Unlike the program in Gratz, Harvard does not award a fixed amount of points to applicants because of their race.
As might be expected given the issue and the school involved, the case garnered considerable attention. Just the list of groups submitting amicus curiae briefs was longer than some entire court rulings.