Lawsuits Against Harvard and UNC-Chapel Hill Urge an End to Race-Conscious Admissions

November 18, 2014

An advocacy group opposed to race-conscious college-admissions policies is urging federal courts to end their use around the nation through lawsuits filed on Monday against Harvard University and the University of North Carolina at Chapel Hill.

In contrast to the most recent challenge to such policies fielded by the U.S. Supreme Court—a lawsuit accusing the University of Texas at Austin of being too heavy-handed in its admissions preferences for black and Hispanic applicants—the new complaints against Harvard and North Carolina argue that race-conscious policies should be completely banned by the nation’s highest court because colleges inevitably abuse them.

Both lawsuits also stand out from previous legal assaults on race-conscious admissions policies in their focus on Asian-Americans as alleged victims of discrimination and in their attacks on colleges’ use of other admissions preferences seen as obstacles to diversity, such as favoritism toward the children of alumni.

"The rampant discrimination against Asian-Americans at Harvard, and both universities’ failure to comply with recent Supreme Court directives with regard to race preferences, are emblematic of the unfair, counterproductive, and illegal behavior of the vast majority of competitive colleges throughout the country," said Edward Blum, president of Students for Fair Admissions, the fledgling advocacy group listed as the plaintiff in both of the new lawsuits.

Robert W. Iuliano, Harvard’s general counsel, said in a written statement issued on Monday that the university’s admissions processes "remain fully compliant with all legal requirements and are essential to the pedagogical objectives that underlie Harvard’s educational mission."

Rick White, a spokesman for the University of North Carolina at Chapel Hill, on Monday issued a statement noting that the Education Department’s Office for Civil Rights had reviewed his institution’s admissions process and declared it consistent with federal law in a letter of findings two years ago. "The university stands by its current undergraduate admissions policy and process," his statement said.

More Lawsuits Likely

Harvard and Chapel Hill are two of three institutions that Mr. Blum announced plans to go after last spring. In an interview on Monday, he said he had not abandoned his plans to sue the third institution—the University of Wisconsin at Madison—"or any other competitive university" that his group believes to have race-conscious admissions policies that violate federal antidiscrimination laws.

As director of a separate advocacy group, the Project on Fair Representation, Mr. Blum also has played a central role in mounting the legal challenge to the race-conscious undergraduate admission policy at the University of Texas at Austin. The project’s lawyers intend in the coming weeks to ask the Supreme Court to revisit that case, Fisher v. University of Texas at Austin, based on an argument that the U.S. Court of Appeals for the Fifth Circuit has failed to obey the Supreme Court’s instructions to subject the policy to strict scrutiny.

Mr. Blum said on Monday that he would not seek to introduce into the Texas case the broad arguments against race-conscious admissions being made in the complaints against Harvard’s and Chapel Hill’s policies because the Texas case "stands on its own unique facts and circumstances" and because "conflating the three cases is not useful for any of the parties."

His new lawsuits explicitly challenge the wisdom of the Supreme Court’s past decisions to allow race-conscious admissions, in the hope of persuading the high court to abandon those precedents. "We have to preserve that option," he said.

Revisiting Precedents

The challenge to Harvard’s policy brings the legal debate over such policies full circle because Harvard played a pivotal role in the Supreme Court’s initial adoption of an allowable rationale for race-conscious admissions in its 1978 decision in Regents of the University of California v. Bakke, involving a white student rejected from the California university’s medical school at Davis. In a friend-of-the-court brief filed in that case, Harvard joined several universities in arguing for the benefits of diversity in higher education.

The new lawsuit filed against Harvard argues that it has more recently discriminated against Asian-Americans by holding them to higher standards than other applicants, subjecting them to stereotype-based bias, and otherwise attempting to hold their numbers down as they have accounted for a growing share of qualified applicants. The lawsuit offers as evidence race-linked gaps in student qualifications and admissions data that, it argues, show that Harvard has raised or lowered the bar for certain racial and ethnic groups as necessary to keep their respective share of enrollment fairly constant.

"Harvard and other academic institutions cannot and should not be trusted with the awesome and historically dangerous tool of racial classification," the lawsuit argues. "As in the past, they will use any leeway the Supreme Court grants them to use racial preferences in college admissions—under whatever rubric—to engage in racial stereotyping, discrimination against disfavored minorities, and quota setting to advance their social-engineering agenda."

The lawsuit also argues that Harvard could be achieving diversity in its enrollment through race-neutral means, such as increasing its financial-aid offerings, abandoning an early-admissions policy that confers an advantage on wealthier and better-informed students who can apply and commit early, and curtailing its admissions preferences for students connected to alumni or generous donors.

The lawsuit against the University of North Carolina at Chapel Hill similarly accuses it of giving too much weight to applicants’ race and undermining its own diversity efforts by having an early-admissions policy and systematically showing favoritism to at least some applicants connected to alumni.

In arguing that North Carolina could be achieving racial diversity through race-neutral means, the lawsuit tries to turn the university’s own words against it, citing a friend-of-the-court brief that the university submitted to the Supreme Court in the University of Texas case. In that brief, the university said that it could achieve black enrollments similar to those it has by considering race through a program of admitting North Carolina students who are at the top of their high-school classes, but that it rejects doing so partly because the result would be a projected 56-point decline in the average SAT score of entering classes.

The lawsuit says such a decline "will have little to no effect on the academic quality of the student body."