Harvard Diversity Case Goes to Trial, Other Cases Challenging Affirmative Action Pending as Composition of U.S. Supreme Court Changes

October 12, 2018

Legal challenges to affirmative action continue to mount despite the U.S. Supreme Court having ruled on diversity in its 2016 decision Fisher v. University of Texas (II), which upheld by a single vote an admissions process that used holistic reviews of applicants that contained race as a factor.

District Court takes up Harvard case:  On Monday, a lawsuit brought by the Students for Fair Admissions (SFFA) against Harvard goes before the U.S. District Court in Massachusetts on motions for summary judgment by both parties.  SFFA claims the university treats Asian-American undergraduate applicants unfairly.  Harvard defends its “whole-person evaluation” by arguing that race is one of many factors to be considered in pursuit of diversity.

Education precedents impact employment cases:  While the Harvard case involves affirmative action in higher education, U.S. Supreme Court diversity rulings carry over to litigation in the employment arena.

Justice Department weighs in:  In July, the Department of Justice rescinded Education Department guidance regarding when colleges and universities can implement race-conscious policies.  The DOJ has entered the Harvard case in support of SFFA and is investigating a civil rights complaint filed by 64 Asian-American associations challenging Harvard’s practices.  The DOJ says Harvard “engages in unlawful racial balancing.”

Harvard case part of broader challenge to affirmative action:  The 2016 University of Texas case was sponsored by the Project on Fair Representation (POFR), which, according to its website, “is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.”  POFR focuses on four types of challenges—voting, education, contracting, and employment, where individuals seek to challenge government distinctions and preferences based on race and ethnicity. 

POFR is sponsoring the Harvard case and two more education cases, one against the University of North Carolina and another against the University of Texas.

Outlook:  While it takes years to move cases through the courts to the Supreme Court, the lawsuits bear close watching because of recent changes to the Court’s composition.  Four sitting Justices favor affirmative action—Breyer, Ginsburg, Kagan, and Sotomayor, but three question it—Alito, Roberts, and Thomas.  Neither Gorsuch nor Kavanaugh has yet rendered an opinion on diversity from their new positions on the Court.