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Major outpouring of support for University in legal battle over admissions approach

7 min read

Hundreds of social scientists, business executives, Nobel laureates, state attorneys general, colleges rebut group appealing judgment in favor of Harvard’s policies

Hundreds of social scientists, Nobel Prize-winning economists, corporate executives, higher-education experts, attorneys general from 15 states, 15 colleges and universities, as well as 26 Harvard alumni and student organizations representing thousands of Asian American, black, Latinx, Native American, and white Harvard community members expressed their support for Harvard’s pro-diversity approach to admissions this week in a series of legal filings that were part of a federal appeals process. In September a federal judge upheld Harvard’s admissions policy following a three-week trial.

The filing of these “friend of the court” briefs Thursday with the First Circuit Court of Appeals in Boston is the latest development in an ongoing legal challenge to Harvard’s admissions practices. Supporters called for the judges to adhere to Supreme Court precedent and uphold the lower court’s ruling that Harvard may continue to consider race as one among many factors when admitting students.

Among the briefs was a document representing 14 of the nation’s leading businesses, including tech giants Apple Inc., Microsoft Corp., and Twitter. In their filing, the companies argued that diversity in higher education is essential to ensure that future generations of talented workers will be able to successfully compete in a global economy.

“To find the next superb employee, amici depend on universities admitting talented students from all backgrounds, and helping each student learn how to thrive in a diverse and inclusive setting,” the companies argued. “And as the Supreme Court has repeatedly recognized and approved, amici agree that a university may well conclude that meeting such a crucial goal, even today, requires a race-conscious, holistic university admissions program.”

They also agreed that, “[i]n the absence of workable race-neutral alternatives — as the district court concluded is the case … universities such as Harvard must be able to employ race-conscious, holistic admissions practices to create the best recruiting classes for businesses.”

The attorneys general signed on to a brief outlining the importance of diversity in higher education and beyond and urging the appellate court to affirm U.S. District Court Judge Allison D. Burroughs’ ruling. “[We] share a compelling interest in ensuring that students at colleges and universities receive the educational benefits that flow from diversity of all kinds amongst their peers — including racial diversity,” they wrote. “By ensuring that our students go forth into their adult lives with these educational benefits, we also strengthen our society, our democracy, and our economy.”

In 2014, Harvard was sued by Students for Fair Admissions Inc. (SFFA), an organization founded by Edward Blum, the architect of a range of attacks on civil rights protections for members of underrepresented minority groups in recent years. The lawsuit claimed the College intentionally discriminated against Asian American applicants and that its use of race in the undergraduate admissions process was unlawful. Last September, Burroughs ruled against SFFA on all counts, determining that Harvard does not discriminate on the basis of race, engage in racial balancing or the use of quotas, or place an outsized emphasis on race when considering an applicant’s admissions file. She also held that “no workable and available race-neutral alternatives” could achieve Harvard’s interest in diversity, which the U.S. Supreme Court has repeatedly ruled a legitimate educational objective.

“Our higher education institutions have emphasized time and again that campus diversity is a necessary ingredient of their ability to prepare students to compete and thrive in an increasingly diverse country and global economy.”

Peter McDonough, American Council on Education

In its own appellate brief submitted on May 14, Harvard defended its victory, reiterated its compliance with Supreme Court precedent, and argued that Burroughs’ decision should be affirmed. “After conducting a three-week bench trial, hearing testimony from twenty-five witnesses, and reviewing hundreds of exhibits, the district court issued a 130-page decision, encompassing more than 80 pages of factual findings, that carefully considered and rejected all of SFFA’s claims,” reads the Harvard brief.

“Harvard’s interest in student body diversity is substantial and compelling,” said Peter McDonough, vice president and general counsel for the American Council on Education, which filed a brief on behalf of 41 organizations of higher learning. “Our higher education institutions have emphasized time and again that campus diversity is a necessary ingredient of their ability to prepare students to compete and thrive in an increasingly diverse country and global economy.”

A brief submitted on behalf of 15 higher education institutions in support of Harvard stated: “In light of the momentous interests at stake, Amici urge the court to affirm the right of educational institutions to structure admissions programs that appropriately consider race and ethnicity within the context of an individualized and holistic review.”

“Harvard’s whole-person review treats each individual as an individual, not merely as a member of a racial group with presumed qualities and characteristics,” read a brief representing more than 670 social scientists from colleges and universities across the country. “That approach is well-grounded in social science research and benefits Asian American applicants. The district court correctly rejected Plaintiff’s arguments to the contrary.”

Harvard has long championed a diverse learning environment and the development of a student body filled with individuals who bring a range of different backgrounds and perspectives to campus. For decades, Harvard College’s Admissions and Financial Aid Office has sought out talented students from all communities and encouraged them to apply. For decades, a range of programs and scholarships have helped those with strong academic credentials but limited means gain access to a Harvard education.

In 2004, University President Lawrence H. Summers helped spearhead the expansion of Harvard’s financial aid, essentially making attendance free for low-income students. Three years later, his successor as Harvard president, Drew Faust, announced a new initiative designed to ensure greater affordability for middle-income families through major enhancements to grant aid, the elimination of student loans, and the removal of home equity from financial aid calculations. In March 2020, Harvard announced plans to expand its program again by eliminating the summer work expectation for students beginning in the 2020‒21 academic year.

To further campus diversity, in 2016 Faust also tasked a new Presidential Task Force on Inclusion and Belonging with identifying ways to help the University ensure it was a place where everyone felt they belonged. Harvard President Larry Bacow has continued those efforts, supporting the creation of the University’s new Office for Diversity and Inclusion, as well as surveying all students, faculty, and staff last spring to assess the culture of inclusion and belonging across the community. The newly created Diversity, Inclusion, and Belonging Leadership Council — made up of leaders from all Harvard’s Schools and major units — is developing responses to the survey. And the University also created the Harvard Culture Lab Innovation Fund to serve as “an incubator for innovative ideas that seek to advance diversity, equity, inclusion, and belonging across Harvard.”

Sally Chen ’19, one of the many Harvard alumni supporting the College, joined an amicus brief submitted by the Lawyers’ Committee for Civil Rights Under Law and Asian Americans Advancing Justice, which represents a wide range of students and alumni. Chen, who got involved with the case while she was a junior at the College, said her decision to do so was informed by her support of equal opportunity “and the related policies that view a whole person in context.”

In her College application personal essay, Chen, a first-generation Asian American, first- generation college graduate, wrote about how her efforts to advocate for her family “really shaped who I am today” and informed the work she hoped to pursue.

“I would not have been able to fully convey my strength or my potential contribution to the College and beyond,” added Chen, who serves as economic justice program manager for the nonprofit Chinese for Affirmative Action in San Francisco, “without talking about my race.”

The appeal will be heard by a three-judge appellate court panel, but many legal experts see the case ultimately being decided by the nation’s highest court. In a statement following Burroughs’ October ruling, SFFA founder Blum said he would appeal the decision, “if necessary to the U.S. Supreme Court.”