But from the beginning, the plaintiffs suing Harvard were preparing for a Supreme Court challenge that could overturn decades of precedent and outlaw affirmative action in college admissions. Harvard’s win, which upheld existing law, only makes the challenge more likely, some experts said.
“It is now on the fast track to the Supreme Court because now the Supreme Court can say we want to reverse the old law,” said Derek W. Black, a constitutional law professor at the University of South Carolina. “You wouldn’t take it just to say, ‘Hey, you got the facts wrong.’”
The judge, Allison D. Burroughs, seemed to anticipate the road ahead when she spent nine pages of her 130-page ruling discussing the history of Supreme Court decisions on affirmative action, from the first in 1978 to the most recent in 2016. The decision took her almost a year after the trial to deliver.
“I think she wrestled and struggled with it,” said Carl Tobias, a law professor at the University of Richmond. “But I think she has it right, given precedent and the evidence.”
More than 40 years after the Supreme Court first weighed in on a high-stakes dispute over affirmative action in college admissions — permitting the consideration of race but striking down explicit quotas — the dispute has grown only more fractious.
Other lawsuits related to race-conscious admissions are pending. Edward Blum, the longtime foe of affirmative action who orchestrated the Harvard case, is waging a separate legal battle against the University of North Carolina at Chapel Hill over its admissions process. A trial in that case is expected next year.
Richard Sander, an academic who has been critical of affirmative action, is suing the University of California system for admissions data, which he says could reveal whether the system has secretly reintroduced race into admissions decisions, setting the stage for a showdown there. (California has banned affirmative action in colleges and universities since 1996.)
The battle has also spread beyond the reaches of the courtroom.
The Justice Department has opened investigations into admissions practices at Harvard and at Yale. In Washington state, voters will decide with a ballot measure in November whether to keep affirmative action at public colleges. And race-neutral alternatives for promoting diversity have been gaining sway, like the effort by the College Board to include the socioeconomic backgrounds — but not the race — of students with their SAT scores.
But the multipronged efforts by Blum, and his group Students for Fair Admissions, have in recent years been the most visible in the quest to dismantle race-conscious policies used by elite colleges across the country.
“It makes clear that this is a coordinated campaign that’s underway, that his endpoint is the U.S. Supreme Court, and that he’s applying every pressure point,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law.
Blum was behind the last affirmative action admissions case to reach the Supreme Court, Fisher v. University of Texas at Austin, which was decided in 2016 and upheld a race-conscious admissions program at the state’s flagship university. But that decision was written by Justice Anthony Kennedy, a swing vote who has since been replaced by President Donald Trump’s more conservative pick, Justice Brett Kavanaugh.
Many have pointed out that the newly constituted Supreme Court may be more receptive to banning race-conscious admissions than it has been in years. There is a five-member conservative majority, and Chief Justice John Roberts sided with conservative Justices Clarence Thomas and Samuel Alito to dissent in the 4-3 Fisher case.
Roberts wrote the opinion in Shelby County v. Holder, a 2013 decision that gutted a key portion of the Voting Rights Act. That case was sponsored by Blum.
If Burroughs found Harvard’s policies weak in any area, it may have been on the question of whether implicit bias was a factor in the admissions process. She said it was conceivable that the unintentional biases of admissions officers, and of guidance counselors and teachers who write student recommendations, could affect the process. But the effects were very slight, she added, and “while regrettable, cannot be completely eliminated in a process that must rely on judgments about individuals.”
“We used to be concerned when you had explicit bias, which is demonstrated by Brown v. Board,” Tobias said of the 1954 Supreme Court case outlawing racially segregated schools. “But the idea of implicit bias is that they’re still lingering and people may not even know it. Just by living in this society, they have acquired biases, specially against minorities.”
Burroughs did not buy the plaintiffs’ statistical analysis arguing that Harvard’s more subjective admissions measures were prone to stereotyping, but suggested that Harvard could do a better job of guarding against implicit bias. “It may offer them an opening to make that argument on appeal,” Tobias said.
He said it was more likely, however, that the plaintiffs would focus on overturning precedent going back to Regents of the University of California v. Bakke, which in 1978 became the first case to uphold race-conscious admissions but outlawed racial quotas.
Burroughs found that there was no smoking gun of discrimination. “The statistics themselves are alone not enough,” she said. “In other words, although the statistics perhaps tell ‘what,’ they do not tell ‘why,’ and here the ‘why’ is critically important.”
She said the testimony from admissions officers that there was no discrimination against Asian-American applicants was “consistent, unambiguous and convincing.” It was likely, she said, that the plaintiffs’ statistical analysis was flawed and the Asian-American penalty was overstated.
She faulted the plaintiffs for not putting any Asian-American applicants on the witness stand to testify about how they were discriminated against. (The plaintiffs said they did this to protect the students from harassment.)
One way for the Supreme Court to overturn race-conscious admissions would be to tackle the issue of how much diversity is enough, Black said. The high court could say, “Look, we think what they can achieve without considering race is enough diversity, and therefore the consideration of race is unnecessary,” he said.
Even though Blum lost at trial, Black added, he made some strategic choices in garnering publicity by focusing on a high-profile defendant, Harvard, and a sensational narrative — that it was keeping out Asian Americans.
“You bet your bottom dollar that every member of the Supreme Court was reading that decision last night or this morning,” he said, “because there was so much narrative that’s been built around it.”
This article originally appeared in
.