Why Affirmative Action Should Survive SFFA v. Harvard: An Analysis of Personal Ratings and Asian American Applicants
After decades of Supreme Court precedent in favor of allowing universities to consider race in admissions, yet another case has risen to challenge the practice. Students for Fair Admissions v. Harvard College concerns whether Harvard discriminates against Asian American applicants in its admissions, an allegation that seemingly adds a new layer in the debate over affirmative action. Yet, despite SFFA v. Harvard’s more novel argument about Asian American discrimination, the legal rationale for affirmative action still holds.
Firstly, how exactly does SFFA v. Harvard differ from other affirmative action lawsuits? For past cases like Grutter v. Bollinger (2003),1 the relevant question was whether colleges and universities could evaluate race among other factors in admissions. In SFFA v. Harvard, however, the question was whether Harvard has discriminated against Asian American applicants in its undergraduate admissions process, rather than a direct attack on race-based admissions. Certainly, SFFA is likely to seek a full denial of affirmative action either way; after all, founder Edward Blum had also spearheaded attempts to overturn affirmative action in Fisher v. University of Texas (2013) and Fisher II (2016),2 3 neither of which pertained to Asian American applicants. Nonetheless, SFFA v. Harvard’s focus on Asian American discrimination—the first such case with non-white plaintiffs—may complicate the litigation over affirmative action. First, this article will review how SFFA’s new allegation of Asian American discrimination impacts the legal reasoning in past Court precedent over affirmative action. Then, this article will analyze why SFFA’s new arguments surrounding Asian American discrimination also should not dismantle affirmative action.
Affirmative action broadly concerns the Fourteenth Amendment; SFFA points to the explicit language that guarantees “equal protection under the law,” which appears to complicate the consideration of race in college admissions. Although there are a variety of legal interpretations of this Equal Protection Clause, one more charitable reading recognizes the historical impetus for the 14th Amendment as a means to mitigate racial injustice, not just a racially blind decree. The exception, then, is allowed when this deviation from pure equal protection passes strict scrutiny. To meet the criteria of this highest tier of scrutiny, the state requires a compelling governmental interest with a narrowly tailored solution; see United States v. Carolene Products (1938).4 With that in mind, Harvard’s affirmative action is firmly within the bounds of the Fourteenth Amendment as permitted by the Court as proven through rigorous legal tests applied with strict scrutiny.
As the longstanding rationale in favor of affirmative action, the Court initially found that the aspiration for a diverse student body passes this strict scrutiny. In Regents of Univ. of California v. Bakke (1978),5 its first ruling on affirmative action, the Court contended that a university, in some circumstances, could employ a specific form of affirmative action to pursue such a goal. Since then, all other affirmative action cases have also maintained that an institutional interest in diversity can satisfy this high threshold set by strict scrutiny. None of that has changed with the Asian American applicants to Harvard. If anything, Harvard’s mission to promote diversity has manifested in Asian Americans comprising 27.8% of the recently admitted Harvard class of 2026, as compared to less than 6% of the national population. More broadly, these policies have made Harvard’s most recently admitted cohorts the most racially diverse in the College’s history—an ambition that the Court commends as compelling.
Additionally, in line with Court precedent, Harvard applies holistic review to evaluate applicants—their race being one of the factors. In fact, Grutter lauded the so-called “Harvard plan” that is “highly individualized” and “not in a way that makes race or ethnicity the defining feature.” Nearly two decades later, Harvard still uses the same practice of holistic review, decidedly the most tractable admissions procedure Harvard could implement. By broadly dividing up its overall score into four categories (academic, extracurricular, athletic, and personal scores), Harvard’s system prioritizes students that are well-rounded across the board. SFFA rather simplistically claims that just because Asian American students demonstrate the highest academic scores on average, the fact that they are not admitted at the same rate implies discrimination.
To explain this disparity, SFFA claims that Asian American applicants are systematically given lower personal ratings to maintain some latent racial quota. Because the personal rating is so opaque to outside perspectives, they further claim, its subjectivity is exercised as a penalty against Asian American applicants to achieve racial balancing. In fact, SFFA’s original complaint posits that Harvard uses holistic review to “hide intentional discrimination against Asian Americans”—an insinuation that is entirely unfounded.6 Indeed, if Harvard were actually found to exhibit the invidious discrimination that SFFA alleges, its affirmative action system would not meet strict scrutiny; see Washington v. Davis (1976).7 In that regard, SFFA would win if it can prove that Harvard is intentionally discriminatory against Asian American applicants.
As a result, both SFFA and Harvard have hired independent experts to statistically analyze Harvard’s admissions data; Peter Arcidiacono, an economist at Duke University, has testified for SFFA,8 while David Card, an economist at University of California, Berkeley, has testified for Harvard.9 Perhaps unsurprisingly, their analyses are at odds over the statistical significance of race on admissions. While these statistical analyses may be potentially relevant in the ultimate outcome of the lawsuit, they only show some level of racial correlation (but not causation). Therefore, even if the ground statistical truth were that, on average, Asian American applicants received lower personal ratings over the past few years, that does not implicate Harvard in intentional discrimination.
Foremost, a general defense of Harvard’s personal rating: Harvard receives so many academically qualified applications that other factors become crucially important to distinguish. As prolific a high test score might be, thousands more students earn a perfect SAT or ACT score than are accepted to Harvard. The personal rating, then, recognizes that a good peer and classmate contributes to a healthy and diverse student body by displaying traits beyond standardized test scores and grade point averages. SFFA’s attack on the personal rating is therefore overly reductive; an applicant with better statistical metrics does not necessarily make for a more qualified candidate. Considering other application processes—including job applications, for example—it is clear that evaluations akin to personal ratings are very reasonable assessments of an applicant. Written responses, interviews, and recommendations can accurately capture a student’s personality and are widely accepted everywhere else in society as valid assessments. As an indicator for a student’s potential fit at Harvard, the personal rating captures Harvard’s belief in admitting the most qualified people, not just the most qualified students by academic metrics.
After establishing SFFA’s charges, there is no reason to believe that Harvard intentionally discriminates against Asian American applicants. It seems incredibly unlikely that Harvard would tailor its admissions process to systematically discount the personal ratings of Asian American applicants alone if there were some invidious scheme to limit Asian American enrollment. As previously stated, Asian American applicants perform well on Harvard’s academic and extracurricular scores, which can also be somewhat arbitrary in converting profiles to scores. Besides, the vagueness of holistic review was constitutionally mandated in Grutter; the Court’s aversion to mechanistic applications of race requires that Harvard be subjective in evaluating an applicant. Further, Harvard’s reading procedures for admissions officers explicitly disavow the consideration of race when determining personal ratings (though can be considered in overall ratings). It would be hard to conclude that Harvard tells its admissions officers to discriminate against Asian American applicants in pursuit of a racial quota, all while Harvard’s documents demonstrate a narrowly tailored race-based admissions system. It is equally hard to conclude that Harvard is pursuing a racial quota against Asian Americans when a diverse student body is admitted year after year, with steadily increasing percentages of Asian American admittees to match. In that case, SFFA’s allegation that Harvard seeks to discriminate against Asian American applicants appears entirely unfounded.
SFFA’s new lawsuit is yet another attempt to upend an affirmative action system that has repeatedly survived judicial scrutiny. The Court should not allow SFFA to weaponize anti-Asian American discrimination in an effort to overturn legal precedent.
References
1 Grutter v. Bollinger, 539 U.S. 306 (2003)
2 Fisher v. Univ. of Texas at Austin, 570 U.S. 297 (2013)
3 Fisher v. University of Texas at Austin, 579 U.S. ___ (2016)
4 United States v. Carolene Products Co., 304 U.S. 144 (1938)
5 Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)
6 https://lawyerscommittee.org/wp-content/uploads/2020/07/Original-Complaint.pdf
7 Washington v. Davis, 426 U.S. 229 (1976)
9 https://projects.iq.harvard.edu/files/diverse-education/files/legal_-_card_report_revised_filing.pdf