A newly formed group, the Students for Fair Representation, has filed suit challenging racial and other affirmative action preferences at Harvard and the University of North Carolina at Chapel Hill.

The lawsuits are brought by the same law firm that represented Fisher in Fisher v. Texas, in which the Supreme Court ruled that affirmative action plans were subject to strict scrutiny in applying the Equal Protection Clause:

The parties asked the Court to review whether the judgment below was consistent with “this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003).” Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings.

In particular, whether affirmative action and diversity goals discriminate against Asian-Americans has been a hot political issue, as this report from last spring indicates:

Nearly 20 years after California became the first state to ban the use of race and ethnicity in college admissions, a proposal to reinstate affirmative action has sparked a backlash that is forging a new divide in the state’s powerful Democratic Party and creating opportunity for conservatives. The debate is unfolding in the nation’s most populous and most ethnically diverse state as an unrelated U.S. Supreme Court ruling upholds voters’ rights to decide whether racial considerations should factor into university selections. The California proposal would allow voters to rescind their state’s affirmative action ban, but unexpected pushback from families of Asian descent who mobilized through Chinese-language media, staged rallies and organized letter-writing campaigns has all but killed the measure this year.

An Op-Ed in The Harvard Crimson weighed in:

No one wants to talk about Asian-Americans in the affirmative action debate. With the recent ruling that upheld Michigan’s ban on affirmative action, the divisive pushback by Asian-American political leaders and interest groups regarding the reinstatement of affirmative action in California, and the unsettling “Harvard Not Fair” campaign that seeks to capitalize on the insecurities of rejected applicants based on race, one thing is clear: Asian-Americans are left to converse in the backroom during any nationwide discussion on affirmative action. As Asian-Americans, our placement in the affirmative action debate puts us at an unfair disadvantage against everyone but ourselves. Why is this? Because people on both sides of the affirmative action debate oversimplify the Asian-American experience to suit their needs. Asian-Americans are cast as the “unexplained minority exception” in the cost-benefit analysis of who “wins” and “loses” in affirmative action.

From the Students for Fair Representation Press Release:

Today, the Project on Fair Representation announces the filing of two lawsuits challenging the racial preference admissions policies of Harvard and the University of North Carolina-Chapel Hill. Read the complaint against Harvard Read the complaint against UNC-Chapel Hill The plaintiff in both lawsuits—Students for Fair Admissions (SFFA)— is a newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to both schools, highly qualified students who plan to apply to both schools, and their parents. The Harvard lawsuit alleges the university is engaging in a campaign of invidious discrimination by strictly limiting the number of Asian Americans it will admit each year and by engaging in racial balancing year after year. These discriminatory policies in college admissions are expressly forbidden by the Fourteenth Amendment and federal civil rights laws. Students for Fair Admission’s complaint highlights data and analysis that strongly suggests that white, African-American, and Hispanic applicants are given racial preferences over better qualified Asian-Americans applying for admission to Harvard. Additionally, the complaint demonstrates that Harvard is not in compliance with the new “strict scrutiny” standards articulated in 2013 by the U.S. Supreme Court in Fisher v. University of Texas at Austin. The Fisher opinion unambiguously requires schools to implement race-neutral means to achieve student body diversity before turning to racial classifications and preferences. The UNC-Chapel Hill lawsuit alleges that, like Harvard, the University is not in compliance with the new Fisher strict scrutiny requirements. Students for Fair Admissions explains in its complaint that UNC has admitted in an amicus brief it submitted to the Supreme Court in the Fisher case that the school can maintain, and actually increase, racial diversity through race-neutral means if it ends its race-based affirmative action policies. Students for Fair Admissions argues that this compels the university to end its racial classifications and preferences and adopt some combination of race-neutral policies instead. The discrimination against Asian-Americans at Harvard and both schools’ blatant failure to comply with recent Supreme Court directives with regard to race preferences are emblematic of the behavior of the vast majority of competitive colleges throughout the country. Because of this, Students for Fair Admissions asserts in its complaints that racial classifications and preferences in college admissions are inadministratable; a violation of the Fourteenth Amendment and federal civil rights laws; and must be ended as a matter of policy and law.

The complaints focus heavily on the alleged implicit discrimination against Asians, likening it to past discrimination against Jews, particularly at Harvard:

5. Worse still, Harvard is not even pursuing its claimed “critical mass” interest. Rather, even under governing Supreme Court precedent, Harvard is violating Title VI for at least four reasons. First, Harvard is using racial classifications to engage in the same brand of invidious discrimination against Asian Americans that it formerly used to limit the number of Jewish students in its student body. Statistical evidence reveals that Harvard uses “holistic” admissions to disguise the fact that it holds Asian Americans to a far higher standard than other students and essentially forces them to compete against each other for admission. There is nothing high-minded about this campaign of invidious discrimination. It is “illegitimate racial prejudice or stereotype.” Croson, 488 U.S. at 493. 6. Second, Harvard is engaging in racial balancing. Over an extended period, Harvard’s admission and enrollment figures for each racial category have shown almost no change. Each year, Harvard admits and enrolls essentially the same percentage of African Americans, Hispanics, whites, and Asian Americans even though the application rates and qualifications for each racial group have undergone significant changes over time. This is not the coincidental byproduct of an admissions system that treats each applicant as an individual; indeed, the statistical evidence shows that Harvard modulates its racial admissions preference whenever there is an unanticipated change in the yield rate of a particular racial group in the prior year. Harvard’s remarkably stable admissions and enrollment figures over time are the deliberate result of systemwide intentional racial discrimination designed to achieve a predetermined racial balance of its student body. 7. Third, Harvard is failing to use race merely as a “plus factor” in admissions decisions. Rather, Harvard’s racial preference for each student (which equates to a penalty imposed upon Asian-American applicants) is so large that race becomes the “defining feature of his or her application.” Grutter, 539 U.S. at 337. Only using race or ethnicity as a dominant factor in admissions decisions could, for example, account for the remarkably low admission rate for high-achieving Asian-American applicants. Harvard’s admissions decisions simply are not explainable on grounds other than race. High-achieving Asian-American applicants are as broadly diverse and eclectic in their abilities and interests as any other group seeking admission to Harvard. They compete in interscholastic sports, are members of the school band, work part-time jobs after school, travel, and engage in volunteer work just like everyone else. It is not a lack of non-academic achievement that is keeping them from securing admission. It is Harvard’s dominant use of racial preferences to their detriment.

The lawsuits hit a weakness in affirmative action as applied in the real world.

Quotas — whether explicit or implicit — are an integral part of the goal of diversity, by definition.

Lyle Dennistan at ScotusBlog sees a bigger goal of the lawsuits, ending affirmative action completely:

The saga over the use of race in selecting new college entrants that began with the Supreme Court’s famous ruling in Regents of the University of California v. Bakke nearly four decades ago now has a new chapter — and it is intended to be the final one. Two lawsuits, filed Monday in federal courts against two major universities, are crafted to eventually put before the Supreme Court an explicit plea to overrule Bakke and later decisions on the issue…. The lawsuits do not ask the courts to abandon the idea that racial diversity among college students is a valid educational goal. Instead, they contend that diversity can be achieved by race-neutral alternatives, so public colleges and those that receive federal funds should be ordered to end, altogether, any use of race in the process. Besides Bakke, the lawsuits specifically aim at the Court’s 2003 decision in Grutter v. Bollinger. In last year’s Fisher decision, the lawyers for the disappointed University of Texas applicant, Abigail Noel Fisher, did not ask the Court to strike down the Grutter precedent. Even so, the resulting decision in Ms. Fisher’s case largely supplanted Grutter with a new and more demanding test for colleges when they use race as a factor in admissions. Because these cases will proceed initially in federal district courts, the judges assigned to them will not have the power to overrule any Supreme Court decision. The Court has made it clear repeatedly that, if any of its rulings is to be set aside, only the Justices have the authority to do so. However, the Harvard and UNC lawsuits clearly were prepared to build a case in lower courts so that, perhaps two or three years from now, the lawsuits could reach the Supreme Court for an ultimate test of affirmative action, at least in college admissions. Because Harvard is a private university, it was sued under Title VI of the 1964 Civil Rights Act, which bars racial discrimination in education at institutions that receive federal funds — as Harvard clearly does. UNC-Chapel Hill is a state university, so it is subject to the Fourteenth Amendment’s guarantee of legal equality.

The question is whether and how universities can navigate around the Equal Protection Clause and federal anti-discrimination legislation in accomplishing diversity.



