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By Margaret Potter, Feature Editor
On February 25, 2020, the anti-affirmative action organization Students for Fair Admissions (“SFFA”) filed a petition for a writ of certiorari, asking the Supreme Court to hear its appeal of a United States Court of Appeals for the First Circuit’s decision affirming the constitutionality of Harvard University’s race conscious admissions policies.  SFFA has alleged in its lawsuit that Harvard’s race-conscious admissions policies discriminate against Asian Americans specifically, and its pursuit of racial balancing ignores other race-neutral alternatives to achieve campus diversity. 
Affirmative action is a policy that provides racial minorities, who have historically been discriminated against, preferences in fields of education and employment.  The policy was first named by President John F. Kennedy to address racial disparity in the United States in 1961.  Subsequently, President Kennedy issued an executive order requiring government contracts to “take affirmative action” to further the national goal of promoting non-discrimination.  It was during this period that private colleges developed affirmative action admissions policies in an effort to give preference to racially diverse applicants to create a more diverse student body.  In 1978, these policies were first challenged in Regents of the University of California v. Bakke, in which a white man challenged a private medical school’s admissions policy after he was denied acceptance.  The Supreme Court held, applying strict scrutiny, that the college had a compelling interest in seeking a diverse student body.  Further, the Court upheld the college’s policy, as it considered race as one of my factors in determining the admission of students. 
In 2004, affirmative action was challenged again in Gratz v. Bollinger, in which white law school applicants challenged the constitutionality of a private law school’s admissions policies.  The Court affirmed its Bakke holding, finding that “numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals”.  The Court noted that society as a whole benefits from increased diversity at private institutions.  Twelve years later in Fischer v. University of Texas, a white man challenged a private college’s race-conscious admissions policy.  The Court again upheld affirmative action, finding the race-conscious admissions policy “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races”. 
In the mid-2000s, conservative lawyer Edward Blum began building his case against Harvard University’s race-conscious admissions policies.  Blum created the organization SFFA as a vehicle to dismantle affirmative action. In 2019, he filed suit in a federal district court in Massachusetts challenging Harvard’s policies under Title VI of the 1964 Civil Rights Act, which prohibits bias at schools who receive federal funds.  In this suit, Blum accused Harvard’s policy of impermissible racial balancing that makes it easier for Black and Hispanic applicants to be admitted at the expense of Asian-American applicants.  According to Blum, Harvard engages in racial balancing while ignoring race-neutral alternatives. 
At trial, Harvard disclosed that when considering applicants its admissions officers separate applicants into three categories: (1) exceptional applicants who are all but certain to be admitted, (2) applicants who are below the school’s standard and will be denied, and (3) applicants who are capable of admission but are on the border.<  Among this third category, there are six factors that are considered: academic, extracurricular, athletic, school support, personal, overall, and race.  This third category is the group in which race can be a deciding factor for the applicant.  Among the 40,000 applications Harvard receives it only admits 1,600.  The Harvard class of 2024 is comprised of: 47.7% white people, 24.6% Asian Americans, 13.9% African Americans, 11.8% Latinx, and 2.0% Native Americans and Native Hawaiians. 
The district court upheld the constitutionality of Harvard’s policies, finding that SFFA set forth “no persuasive documentary evidence of any racial animus or conscious prejudice against Asian Americans.”  On appeal to the First Circuit, the court again upheld the constitutionality of Harvard’s policy, finding that Harvard had showed it has a compelling interest in using race in its admissions policies and that this use of race is narrowly tailored.  The First Circuit specifically noted that SFFA did not present a single Asian American individual student who had been denied admission to Harvard based on racial discrimination whereas Harvard had presented several racially diverse students who testified to benefitting from the school’s race-conscious admissions policies. 
Education scholars acknowledge that affirmative action is not perfect but stress the importance of improving the policy, rather than dismantling it.  According to UCLA Education Professor Mitchell Chang, “[t]his has been kind of a beacon of civil rights policies in higher education that helped to transform student demographics, especially at elite institutions.” Director of Higher Education Policy at the Education Trust, Tiffany Trust says affirming affirmative action “helps to reinforce this idea that there are legal ways to incorporate a racial-equity focus in the efforts of higher education leaders to create opportunities and support the success of underrepresented students of color.” In addition to education scholars, the general public seems to prefer upholding affirmative action as well.  According to the Pew Research Center, 71% of Americans support the consideration of race or ethnicities in the admissions process. 
While it is unknown whether the Court will grant SFFA’s petition for cert, there is concern that a 6-3 conservative-liberal bench may be sympathetic to declaring affirmative action admissions policies unconstitutional.  In fact, the Court could overturn affirmative action without overruling its prior precedent by holding that Harvard’s admissions policies are not narrowly tailored and thus cannot survive constitutional muster.  The future of affirmative action in education rests on whether the Court decides to hear SFFA’s appeal.