SD News Roundup, Part 1: Big diversity lawsuits at Harvard and Hartford

Written by Peter Piazza, a post-doctoral researcher at the Center for Education and Civil Rights, and originally posted at the School Diversity Notebook.

November was a busy month for school diversity and civil rights news. In the interest of space, I had to leave out stories on a failed (and bizarre) white secession attempt near Atlanta, new research/reporting on “a la carte” living (or, when neighborhoods become more diverse, but schools do not), and Cindy Hyde-Smith & segregation academies. (I haven’t been able to bring myself to write about that last issue, but Noliwe Rooks has a great piece about it in the NY Times.) Meanwhile, I wish I had more space to write about the proposed revision to sexual assault investigations from the DeVos DOE, but these articles have good overviews on implications for K-12 and higher education. This will be a topic for a future post.

Instead, I want to focus on lawsuits that majorly threaten diversity at the K-12 and higher ed levels. Specifically:

• Students for Fair Admission (SFFA) v. Harvard, a federal case that could potentially end race-conscious admission policies at the higher ed level; and,
• Robinson v. Wentzel, a federal case centered on Hartford, CT’s magnet school program that could potentially end race-conscious enrollment policies at the K-12 level.

As you can tell, there are important similarities here, especially that there are high stakes consequences for each trial. But, there’s more:

• Historically, affirmative action/integration opponents have used cases of white people denied admission to K-12 or higher ed schools to chip away at race-conscious policy. The Harvard and Hartford cases represent a new legal strategy: using non-white students/families as plaintiffs in cases that work against school diversity.
• Both complaints were financed by high-profile anti-integration legal groups.
  • The Harvard case is funded by Edward Blum, a wealthy white financier of anti-affirmative action efforts, most notably the recent Fischer case in Texas. He started SFFA as the vehicle for his anti-affirmative action campaign- the picture here is a screenshot from their homepage. Blum was also influential the case that gutted the Voting Rights Act.
  • Meanwhile, the Hartford plaintiffs are backed by the Pacific Legal Foundation, another long-time opponent of K-12 integration that was a major player in the 2007 Parents Involved case. Given the first point above, there’s an issue in both cases – that wealthy, white folks are capitalizing on understandable concerns from non-white groups to serve their larger political goals.
• Both lawsuits were filed in federal court, putting them on track for a potential SCOTUS ruling, which would very very likely lead to the worst for affirmative action/integration supporters. As I explain in part 2, the pipeline for the Hartford case is a little more complicated.

Since I had a lot to say about each case, I’ve split this post into two parts, with this one focusing on the Harvard case and a post early next week for Hartford. In each post, I use the new coverage to highlight a few key points, and I link to useful articles/resources for those who want to learn more about each case. So, to the Harvard case!

Harvard Affirmative Action: Students for Fair Admission (SFFA) v. Harvard

• Jurisdiction: Currently in a federal court – Hearings were held Oct 15-Nov 2, and the judge recently ordered a new round of hearings scheduled for Feb 13.
• Plaintiffs: An anonymous group of Asian American students, represented by Edward Blum/SFFA
• Key claims-
  • Plaintiffs: “SFFA argues that Harvard, and ultimately all colleges, should no longer consider race in its admissions process, and that Supreme Court rulings in support of affirmative action have ‘been built on mistakes of fact and law.’”
  • Defendants: “The university argues that its “holistic” admissions process is necessary to ensure a diverse student body and does not discriminate against Asian-American students.” Many students apply to Harvard with perfect GPAs and/or SAT scores; so, the university needs to use other criteria, which brings us to a core issue of the SFFA compliant.
• At issue: In addition traditional measures, Harvard uses criteria like participation in extra-curriculars, volunteer work, legacy and a “personal characteristics” rating (among other criteria). As reported in this very helpful Vox.com story, “internal data shows Asian-American applicants are rated lower on personal metrics, despite outperforming white applicants in other areas.” As a result, SFFA argues that Harvard is effectively using the personal characteristics rating as a sort of backdoor way of enforcing a racial quota.
• Left out: The same internal report from Harvard showed that “legacy” admissions offer an advantage to wealthy, white applications; however, this form of affirmative action is not part of the SFFA’s complaint and thus is not threatened by the case.
• At stake: This case could ride the appeals process up to the Supreme Court, where the results (which will not be good) would almost definitely apply to all publicly funded universities in the US, basically ending affirmative action as we know it. This article makes an interesting point – if SFFA loses the federal case, it will definitely appeal; but, if Harvard loses, it could decide not to appeal, thereby keeping it out of an inhospitable court.
• Additional useful/interesting links-
  • As cited above, this Vox.com article is great for an overview/summary of the key arguments and issues at stake in the case. And, as noted in an earlier post, this clip from Hasan Minhaj offers a detailed overview of the case while also providing much needed comic relief.
  • It isn’t just Harvard – there are similar cases at UCLA and the University of North Carolina. And, it isn’t even limited to court cases. Separate from the lawsuits, Harvard and Yale are also under investigation by the Department of Justice for their use of race in admissions policies. All of this to preserve systems of white supremacy.
  • This article has a lot interesting info on the WeChat app, described as a “virtual Chinatown,” used to discuss political ideas and even fuel political campaigns. Specifically, WeChat has been used Facebook-style to intensify/polarize the debate about affirmative action and has served as an organizing platform for anti-affirmative action Chinese Americans. While Affirmative Action remains popular among Asian Americans as a whole, it’s decline among this group may be “almost single-handedly” due to a decline in support among Chinese Americans. As the author points out: “virtually everyone I interviewed for this story agreed that this movement wouldn’t be where it is today…if it weren’t for WeChat.”
  • Lastly, my organization, the Center for Education and Civil Rights recently co-hosted a panel discussion of the Harvard case, alongside the Penn State Law School and the Center for the Study of Higher Education(@PennState_CSHE). The discussion covered the history of affirmative action attacks in higher ed, the particulars of the Harvard case, and research on the importance of diversity on college campuses. I’ll post a video as soon as that is available.

So, in the Harvard trial, there’s an understandable concern in that Asian American students are disproportionately rated lower in “personal characteristics.” But, SFFA is using this important, yet relatively small, issue to do something very big: end race-conscious admission across all publicly funded universities in the US. Again, you’ll see a similar theme in Hartford.