James Erardi Final paper for Intro to Legal Concepts

Professor Michael Jones 4/22/2018

The Harvard Admissions Lawsuit

This court case is, in my opinion, the epitome of social issues we’re facing as a society

in the aughts. Two sides, a union of Asian American students, and the Harvard Admissions

board, are both fighting against one another in the pursuit of the exact same goal - fairness.

Anywhere one looks, they could find similar situations where two sides are butting heads

against one another, attempting to remedy the same problem, but with such drastically differing

opinions on the right way to remedy this problematic something that the juxtaposition between

the two parties is toxically divisive. The Asian American group, supported by the Students for

Fair Admissions (SFFA) in this court case are the plaintiffs, and believe they are subjected to

unfair admission processes in which they are at a disadvantage in several areas because of

unfairly high standards held against them due to them being Asian American. The defendant,

the Harvard Admissions board, believes they are promoting fairness, equality, and diversity

through Affirmative Action by allowing students of underprivileged backgrounds to be

considered in the admissions process even when their standardized test scores fall short when

compared to their Asian American peers.

The situation in detail which brought this case is as follows; Asian Americans across the

country have repeatedly felt as if they are discriminated against in the college admission

process because it is demanded of them, by college admission boards, that their standardized

test scores are several magnitudes higher than their peers of a different race.This hypothesis

has been backed by several pieces of data released from ivy league schools - the most

implicative proof being data from a 2009 book, No Longer Separate, Not Yet Equal: Race and

Class in Elite College Admission and Campus Life, which analyzed 9,000 admitted student’s

SAT and ACT scores. The author was able to draw a conclusion that from anonymously
selected colleges during the 1997 enrollment process, Asian Americans were at a significant

disadvantage where they needed to score 140 points higher than their White peer for equal

consideration, and a staggering 450 points to be considered for equal consideration against

their African American peers. 450 points is an insane amount of points when one takes into

account that the SAT is only out of 1600 points; it is understandable why Asian American

students have felt discouraged and wronged by these admission processes.

It is of note that Asian students, on average, score much higher on all standardized

testing scores than their peers of other races. It is unclear as to why exactly this is a trend, but

experts have speculated that it’s due advantages that Asian students have when growing up

through resources provided to them - either through their primary schooling or through extra

curricular activities that they participate in. It is understandable how this could be a difficult

challenge to face as a college admissions board when their objectively “best and most

deserving” prospective students, from a standardized testing viewpoint, come from the same

race.

It has also become apparent that prestigious universities have placed an unofficial

“quota” on the amount of Asian American students they will admit per year. When one analyzes

admission rates on a percentage basis across all races for prestigious schools, there is a

disturbing trend where Asian American admission rates cap around 18-20%, where other races

have a significantly more varied admission rate. Harvard claims to of been using a so called

“holistic” admissions process, in which they claim to judge candidates on a wide variety of traits

and that standardized testing is only a fraction of the “holistic judgement”. However, the pantiffs

have claimed that Harvard uses this “holistic” admission process to hide the fact that they are

discriminating against Asian Americans through the unofficial quota.

 Harvard, the defendant, has since responded to the plaintiff's allegations against their

holistic admissions policy in a letter. Harvard stands by its unique admissions processes and

wants to ensure that every student is treated equally and fairly in the name of diversity. They

added that they take these allegations very seriously; Harvard University president Drew G

Faust said in 2015 “Our vigorous defense of our procedures and of the kind of educational

experience they are intended to create will cause us to speak frequently and forcefully about the

importance of diversity in the months to come.”.

Throughout the past few years, Harvard has attempted to dismantle the case against

them. In September 2016, they filed two motions, one to dismiss the case entirely and one to

dismiss the initial SFFA (Students for Fair Admissions) complaint. Right before that, the SSFA

demanded Harvard released eight years of admission records, in order to prove their

admissions policies as truly holistic and fair, to which Harvard denied and argued releasing such

information would be “both excessive and infringe on privacy”. Later, in October of 2016,

Harvard announced they would release application data with omitted personal information like

names and Social Security numbers to SFFA.

The court has officially filed a discovery phase for both sides that has lasted the past

year and a half. The court case should adjourn soon.

In the past, there have been several court cases which can provide us context and

predcent on how to proceed with this case. There have been a myriad number of civil rights

cases throughout the US history which, as a result of their pro civil rights rulings, give our

country a strong sense of pride in how diverse of a culture we are and how hard we work to

promote diversity. Diversity is the main goal in higher education and I believe other cases

revolving around diversity in higher education is the key to finding relevant context and
precedence for this court case. One case in particular, Fisher vs The University of Texas,

stands out.

In Fisher vs Texas, a student, Abigail N. Fisher, sued the University of Texas after she

was denied acceptance in 1997. To give a bit of context to the University of Texas’ admissions

policy, Texas lawmakers had enacted legislation where every student who was in the top 10%

of their Texas high school were automatically accepted into the University, regardless of any

external factors. To fill the remaining freshmen student body, the University would consider race

as a factor in the admission process. Fisher, a Caucasian woman, believed she was the victim

of a violation of the Fourteenth Amendment’s equal protection clause when she was denied

acceptance into the University of Texas due to their consideration of race in their admissions

process. The University argued that they were simply attempting to promote diversity in their

admissions policy and that they were just in denying Fisher’s application in the name of securing

a more diverse student body. The state court and United States Court of Appeals for the Fifth

Circuit sided with the University, affirming that the University was just in denying Fisher’s

application for the sake of diversity.

When the case was taken to the federal court, it was treated differently. The Supreme

Court ruled that the Equal Protection Clause of the Fourteenth Amendment does permit the

consideration of race in admission decisions, but only under a ‘standard of strict judicial

scrutiny’. Since the University of Texas’ admission policy had not been subjected to a scrutiny of

strict judicial standard, the Supreme Court ruled that the University of Texas’ decision was

incorrect. The Supreme Court held that cases like these are subject to review under the

Fourteenth Amendment and that reviewed under the aforementioned standard of strict scrutiny

to determine whether the policies are "precisely tailored to serve a compelling governmental

interest”. The Supreme Court held that if this clause was found untrue in a particular case, then
it was illegal for admission offices to take race into consideration during the admission process.

They also held that it would be the lower court’s authority and responsibility to uphold this newly

required and defined scrutiny of strict judicial standards.

Another significant precedent to consider is how it is illegal in several states, including

Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington,

to consider race in the application process. California was the pioneer of this cause with their

Proposition 209, enacted in November 1996, in which it amended the state’s constitution to

include a clause which prohibited public governmental institutions, like public universities, from

considering race, sex, or ethnicity during any application process. This has been an extremely

powerful working example of what the plaintiffs wish to achieve from this case against Harvard.

The goal of the court during this proceeding is the promotion of diversity in higher education,

and the current state of California's state schools could be a decent indication of what

admissions would look like if the plaintiffs won. California’s public universities suffer from a

stigma backed by statistics that the majority of students at those schools are either of

Asian/Pacific islander descent, or Caucasian descent. The University of California - Berkeley,

California’s premier public school, had a student body of 43% Asian, 32% White, 4% African

American, 12% Hispanic, 1% Native American, and 3% International. Another premier public

Californian school, University of California - Los Angeles, had a student body rate of 38% Asian,

34% White, 1% African American, 4% International, and 0% Native American. This trend is

common in every premier Californian public university. It is clear to me, after reviewing these

statistics, that California’s strict policy to not consider race during admission applications to

public universities does not promote diversity.

The presented facts have lead to my decision that is as follows; Harvard, the defendant,

is allowed to use race during consideration of an applicant if and only if their “holistic
process’”has been vetted and is found to be in compliance with the standard that the Supreme

Court had set forth during the Fisher vs Texas case. If it is found that they are not in

compliance, then they must reform their holistic process until it is in compliance with the

precedence that the Supreme Court set. If it is proven that they cannot do this, then they are

unable and forbidden to consider race during their admission policy.

It is of the utmost importance for Universities to promote diversity in higher education,

and it has been statistically found that removing the consideration of race during the admission

process, possibly in attempt to promote racial diversity, has backfired and in actuality has

demoted diversity in higher education. My decision has been significantly influenced by the

statistics collected from California’s higher education system and I believe it is quintessential for

the court to adhere to the statistical proof that California’s policy to outlaw the consideration of

race during the application process is detrimental to the diversity goal of a university.