Education Law

Radcliffe Quadrangle (The Quad) at Harvard University. Photo from Shutterstock.com

A federal judge in Massachusetts has upheld Harvard University’s consideration of race in undergraduate admissions in a challenge alleging discrimination against Asian Americans.

U.S. District Judge Allison D. Burroughs said the admissions program “is not perfect,” but it serves “a compelling, permissible and substantial interest” that is narrowly tailored to achieve diversity. The news broke Tuesday, although Burroughs’ opinion is dated Sept. 30.

The New York Times, the Harvard Crimson, NPR, Law.com and CNN have coverage.

“The rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance and understanding that will ultimately make race conscious admissions obsolete,” Burroughs wrote.

Harvard doesn’t have a quota for students of any racial group, but it tracks how each group is faring with an eye toward achieving racial diversity and a rich experience for students, Burroughs said. Race is never viewed as a negative attribute.

Burroughs said she was unable to identify any applicant who was discriminated against or intentionally stereotyped by Harvard admissions officers.

Burroughs acknowledged that Asian American applicants were designated as “standard strong” more frequently than white applicants and minority applicants, meaning the reviewer deemed such people to be strong applicants who haven’t distinguished themselves within Harvard’s pool of applicants.

But Burroughs concluded that there isn’t a significant difference between white and Asian American applicants given the label “as reflected by the sum of their profile ratings.”

Burroughs also acknowledged that Asian Americans would likely be admitted at a higher rate if admissions decisions were based solely on academic and extracurricular ratings. But personal ratings given to Asian American applicants are slightly lower than those given to similarly situated white applicants, she said. And athletic ratings assigned to Asian Americans are also lower.

Asian Americans might be receiving lower personal ratings partly because of stronger teacher and guidance counselor recommendations that white applicants are getting, Burroughs said.

In any event, the statistical disparity is small and does not reflect intentional discrimination, Burroughs said.

The U.S. Department of Justice had supported the plaintiff, Students for Fair Admissions, a nonprofit whose leader was also involved in a challenge to race-conscious admissions in Fisher v. University of Texas before the U.S. Supreme Court. The Supreme Court had found no equal protection violation at the Texas school in a 4-3 decision in 2016 that was written by Justice Anthony M. Kennedy.

Students for Fair Admissions plans to appeal Burroughs’ decision.

The case is Students for Fair Admissions Inc. v. President and Fellows of Harvard College.