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Court Upholds Harvard's Race-Conscious Admissions Program, Emphasizes Need to Evaluate Race-Neutral Alternatives

Higher Education Alert

Author: Amy C. Foerster

10/03/2019
Court Upholds Harvard's Race-Conscious Admissions Program, Emphasizes Need to Evaluate Race-Neutral Alternatives

On September 30, the U.S. District Court for the District of Massachusetts found in favor of Harvard College in a lawsuit challenging its consideration of race in undergraduate admissions. In Students for Fair Admission, Inc. v. President & Fellows of Harvard College,1 the court concluded that Harvard’s admissions processes survive the strict scrutiny constitutional analysis articulated by the U.S. Supreme Court in Fisher v. University of Texas at Austin. Notably, the court looked favorably on Harvard’s ability to demonstrate, in a documented and data-driven manner, that no race-neutral alternatives would enable the college to achieve its diversity-related educational objectives.

The case serves as an important reminder to colleges and universities that it is not sufficient to simply rely on a “holistic” admissions approach, where race is one of many factors considered in an individualized assessment of candidates. Rather, schools also must be able to demonstrate that they have evaluated and affirmed their compelling interest in a diverse student body, and have determined that there are no race-neutral alternatives that would allow them to meet their diversity goals. The successful navigation of a strict scrutiny analysis requires that institutions study the impact of race-neutral alternatives, rather than relying on untried and anecdotal assumptions.

The court found that Harvard established “convincingly” that it had determined that race-neutral options would not allow it to achieve the level of racial diversity it has credibly found necessary for its educational mission. Specifically, Harvard offered evidence demonstrating that it evaluated options such as eliminating early action admissions; ceasing the practice of awarding admissions credit to candidates who are athletes, legacies or the children of faculty and staff; augmenting recruiting efforts and financial aid; admitting more transfer students; eliminating standardized testing; and using place-based quotas, and determined that those measures, alone or in combination, would not have the desired result.

Strict scrutiny requires that institutions engage in an analysis specific to their circumstances, including consideration of their applicant, admitted and enrolled student pools, to determine whether any alternatives to race-conscious admissions will meet their compelling diversity interests. The analysis should evolve over time, rather than relying on a single snapshot. Pepper’s higher education attorneys have worked closely with institutions as they pursue their diversity efforts, and stand ready to assist as schools consider how they would demonstrate the constitutionality of their practices.

Endnote

1 Pepper Hamilton did not represent any party to the action, nor was it otherwise involved with any aspect of the underlying case.

Amy Foerster is co-chair of Pepper Hamilton’s Higher Education Practice Group, which embraces the mission and business of higher education, while providing comprehensive legal services to colleges, universities and other educational institutions as they navigate the myriad issues impacting their campuses each day.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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