Federal Appeals Court Upholds Harvard University’s Use of Affirmative Action Policies

A federal appeals court Thursday upheld the use of race in college admissions at Harvard University, a major victory for affirmative action policies that could be headed to the Supreme Court.

The appeals court panel ruled 2-0 that Harvard did not violate federal civil rights law by using race and ethnicity as factors in the admissions process. A federal district judge issued the same ruling last fall.

The case against Harvard, the nation’s oldest institution of higher learning, was brought in 2014 by opponents of affirmative action using the moniker Students for Fair Admissions, the brainchild of conservative legal strategist Edward Blum. In a twist, the group charged that Harvard discriminated against Asian American students in order to boost African American and Hispanic enrollment.

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The U.S. Court of Appeals for the 1st Circuit – working with two rather than the usual three judges on a panel following the death last month of Judge Juan Torruella – ruled that Burroughs did not err in her analysis of the case.

“Harvard’s limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent,” Judge Sandra Lynch, who was named to the bench by President Bill Clinton, wrote for the panel. She was joined by Chief Judge Jeffrey Howard, named by President George W. Bush

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Most recently, the Supreme Court ruled 4-3 in 2016 that “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

But that decision was written by Associate Justice Anthony Kennedy, the court’s longtime swing vote, who retired in 2018. He was succeeded by the more conservative Associate Justice Brett Kavanaugh, giving opponents of affirmative action hope for a reversal in the future. Now, Associate Justice Amy Coney Barrett‘s confirmation has given conservatives a 6-3 majority.

“{snip}The case was always designed to go to the Supreme Court and now it will,” said Ilya Shapiro, director of constitutional studies at the libertarian Cato Institute. {snip}

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In the Harvard case, lawyers for the challengers contended that Asian American applicants were victimized by getting lower “personal ratings” than other racial or ethnic minorities. {snip}

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As one of the nation’s most venerated universities, Harvard gets more than 40,000 applications annually and enrolls only about 1,650 first-year undergraduate students, or 4%. The school’s class of 2023 includes about 25% Asian Americans, 14% African Americans and 12% Hispanics.