Using terms like “holistic” and “individualized” to describe Harvard College’s race-conscious admissions process, the U.S. Court of Appeals for the First Circuit recently upheld Harvard’s race-conscious admissions process.^[1]  Finding that Harvard’s process permissibly considered an applicant’s race as only one part of his/her application without giving race determinative effect, the court rejected a challenge from Students for Fair Admissions, Inc. (“SFFA”), which claimed that Harvard’s admissions process violated Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of white applicants. SFFA has indicated to various media outlets that it intends to appeal the First Circuit’s decision (spanning 104 pages) to the U.S. Supreme Court. For now, the First Circuit’s decision re-affirms that colleges and universities may employ race-conscious admissions policies that consider race as one part of an admission decision, but may not use race as a dispositive factor for or against an applicant’s admission.

A summary of the six components of Harvard’s admissions process—plus “tips”

Harvard’s admissions process is multi-faceted, and it involves multiple admissions officers (and sometimes alumni) evaluating a prospective student’s application. Though Harvard considers race as one of many of an applicant’s attributes, Harvard does not adjust an applicant’s score solely on the basis of race.

But Harvard does use a system of “tips,” which the First Circuit described as “plus factors that might tip an applicant into Harvard’s admitted class.” Admissions officers may award tips based on a range of factors: “outstanding and unusual intellectual ability, unusually appealing personal qualities, outstanding capacity for leadership, creative ability, athletic ability, legacy status, and geographic, ethnic, or economic factors.” Harvard did not dispute that an applicant’s race is considered when awarding tips.

The First Circuit holds that Harvard’s process survives strict scrutiny

The First Circuit reiterated Supreme Court precedent that Title VI proscribes consideration of race in the admissions process unless that process can survive strict scrutiny—regardless of racial animus. However, “attaining student body diversity may be a compelling interest.”

SFFA argued that Harvard’s process could not survive strict scrutiny because: (1) Harvard engages in racial balancing; (2) Harvard impermissibly uses race as more than a “plus” factor; (3) Harvard considered race though there are race-neutral alternatives; and (4) Harvard intentionally discriminates against Asian American applicants. The First Circuit rejected each of SFFA’s arguments.

• No racial balancing. Racial balancing occurs when a college or university imposes a quota (de facto or otherwise) based on race or ethnicity in the name of diversity. In short, the court held that there was no racial balancing because the increase in the share of Asian American applicants that were admitted outpaced the increase in applicants who identified as Asian American. The same was true for Hispanic and African American students. This result, the court explained, “is the opposite of what one would expect if Harvard imposed a quota.”
• Race was not a mechanical plus factor. Race-conscious admissions policies are illegal “when they give pre-defined boosts to applicants solely because of race, when they preclude individualized consideration of applicants, and when race becomes the decisive factor in admission.” Such policies are considered impermissibly “mechanical” when it comes to consideration of race. The First Circuit held that Harvard “considers race as part of a holistic review process.” While an applicant could receive a “tip” based on race, tips were awarded for other reasons that had nothing to do with race. In any event, the court held that race was not a decisive factor in admitting diverse candidates.
• Harvard was legitimately unable to use race-neutral alternatives. There is a distinction between “conceivable” race-neutral alternatives and “workable” race-neutral alternatives. The Supreme Court requires only that workable race-neutral alternatives be considered. The First Circuit described many of the race-neutral methods that Harvard used over the years, including reducing the cost of a Harvard education through financial aid. The First Circuit noted that some of the proposals offered by SAFA would “meaningful[ly]” reduce the number of African American applicants, thereby hindering Harvard’s diversity efforts. At bottom, the First Circuit agreed that “no workable race-neutral alternatives exist” at Harvard.
• Harvard does not intentionally discriminate against Asian American applicants. Much of this analysis concerned the testimony, findings, and statistical models of expert witnesses. However, SFFA also pointed to admissions officers referring to Asian American applicants as “quiet,” “flat,” “shy,” and “understated,” which SFFA argued were indicia of stereotyping. But the First Circuit disagreed, noting that admissions officers used similar language regardless of an applicant’s race.

In upholding Harvard’s race-conscious admissions process for the period relevant in the litigation, the First Circuit did not certify Harvard’s process as forever unassailable. Instead, the court reiterated that, consistent with Supreme Court precedent, “Harvard has an ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.” That obligation extends to all colleges and universities who accept federal money and are therefore subject to Title VI’s requirements.

Takeaways and conclusion

The SFFA case offers colleges and universities a few important takeaways and lessons. First and foremost, there is no one-size-fits all—or even one-size-fits most—approach to race-conscious admissions. A bespoke, considered approach is what’s called for: one rooted in addressing the particular dynamics and demographics unique to each college or university. Second, critically analyzing the impact and efficacy of admissions policies is key—and the First Circuit recognized Harvard for its efforts in this regard. This analysis must include analyzing every potential workable race-neutral alternative. Finally, a college or university’s analysis cannot stagnate—it must remain ongoing to ensure that the admissions processes and policies do not drift beyond constitutional bounds.

The Higher Education Practice at Saul Ewing Arnstein & Lehr will continue to monitor this and other cases regarding race-conscious admissions policies. 

1. A copy of the opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is available here.