Federal Court in Massachusetts Finds Race May Be an Admission Factor

Date   Oct 14, 2019

Executive Summary: The long-awaited decision from a federal judge in Massachusetts was released on September 30, 2019 finding Harvard College’s admissions policy, where in race is considered a limited factor when admitting applicants, is constitutional. On September 30, 2019, Federal District Court Judge Allison D. Burroughs held that Harvard’s admission policy passed constitutional muster because it serves a compelling, permissible and substantial interest in increasing and maintaining student diversity, and the admissions program is narrowly tailored to that purpose.

Harvard’s Admissions Policy

Harvard College considers its admission process as a “holistic” process whereby the college evaluates candidates for several factors to create a diverse student population. In addition to traditional objective factors such as grades and test scores, Harvard reviews subjective factors such as extracurricular activities, work experience, personality traits, character and race. In 1978, Harvard’s admission process was lauded as exemplary by the Supreme Court in Regents of the University of California v. Bakke, where the Court held that the consideration of race in admissions was constitutional, and although race could not be the sole factor for the decision, it can be used in concert with other factors.

Students for Fair Admissions Sues Harvard College for Discrimination

This case originated in 2014 with the Students for Fair Admissions (SFFA) alleging that Harvard violated the Civil Rights Act and the Equal Protection Clause by discriminating against Asian-Americans in the admission process by using racial balancing and intentionally limiting the number of Asian-American applicants who are admitted each year. SFFA alleged that Asian-American applicants were systematically scored lower for personality characteristics, while performing better on tests, GPA and other areas and argued that race should no longer be considered in the admission process.

Harvard denied any discriminatory actions and defended its “whole student” approach that takes many factors into consideration, not just grades and tests scores. Harvard argued that the practical effect of implementing a race-blind admissions process would be to preclude admission of African American and Hispanic students and that considering race as a factor was necessary to boost diversity and expand educational opportunity at a predominantly white college.

While several higher education institutes have announced their support of Harvard’s admission policy, the Department of Justice filed a statement of interest in favor of the plaintiffs asserting that Harvard was unable to show that it does not unlawfully discriminate against Asian-Americans.

Judge Burroughs Finds In Favor of Harvard

Judge Burroughs found that Harvard’s admission policy did not discriminate against Asian-Americans and that it passed the strict scrutiny standard set out by the Supreme Court when analyzing racial preferences in college admission. In finding Harvard’s admission policy constitutional, Judge Burroughs stated that the admissions process served “a compelling, permissible and substantial interest” and that the process of considering race was narrowly tailored to achieve a diverse student population.

Judge Burroughs observed that no applicant had been identified who was discriminated against or intentionally stereotyped by Harvard admissions officers. The judge gave great weight to the testimony of Harvard’s admissions officers, who stated that there was no racial bias in the process and that admissions decisions were made by evaluating the "whole person." Judge Burroughs indicated that any causal relationship between Asian-Americans and the personal rating score was too subtle to be noticed by the many admissions officers engaged in the admissions process.

While finding the admission process to be constitutional, Judge Burroughs commented that it is “not perfect” and suggested that the process could benefit from “conducting implicit bias trainings for admissions officers, maintaining clear guidelines on the use of race in the admissions process, which were developed during this litigation, and monitoring and making admissions officers aware of any significant race-related statistical disparities in the rating process.”

Bottom Line

This case will almost certainly be appealed to the Court of Appeals for the First Circuit and possibly to the Supreme Court. Given the current administration’s roll back on Obama administration guidance on race-based admissions policies and the current make-up of the Supreme Court, this case provides an opportunity to determine the fate of affirmative action in higher education. While the Supreme Court has previously ruled that colleges or universities may consider race as a limited factor when considering a college applicant, the new conservative composition of the Supreme Court may lead to an elimination of the use of race in the college admission process. We will continue to keep you updated on the status of the case.

If you have any questions regarding this Alert or other labor or employment issues, please contact the authors, Michael Harrington,, partner in FordHarrison’s Hartford office, or Jenna Goldman,, associate in our Hartford office. You may also contact any member of our Education practice group, or the FordHarrison attorney with whom you usually work.