Last week, the U.S. Court of Appeals for the First Circuit in Boston upheld the legality of Harvard University weighing applicants’ race in its admissions process. A nonprofit advocacy group, Students for Fair Admissions (SFFA), contends that the Ivy League school illegally discriminates against Asian American applicants. SSFA charges that Harvard knowingly uses admissions criteria that trigger a “statistically significant Asian American penalty.”
SFFA is expected to petition the U.S. Supreme Court. If the Court grants certiorari, the nine justices would examine one of most divisive topics in higher education.
Athletic ability, like race, is one of several factors in Harvard’s admissions. A Supreme Court ruling that forces Harvard to restructure the manner in which it evaluates applicants could impact how the school—and, by precedent, other universities—values athletic achievements.
Harvard is extremely selective. In 2019, the school received 43,330 applications. Candidates competed in a process that featured a daunting 4.5% acceptance rate. To winnow down applications, Harvard employs a multistep review process. This process is painstakingly detailed in the First Circuit opinion authored by Judge Sandra Lynch. Much of the opinion, which runs 104 pages and exceeds 24,000 words, goes beyond the scope of this story.
Athletic ability surfaces at several points in Harvard’s application process.
When admissions officers read applications, they assign scores usually ranging from “1” to “6” (with “1” being the best) for six types of ratings: academic, extracurricular, athletic, school support, personal and overall. In most cases, “1” is the best rating. To further distinguish these ratings, admissions officers assign “+” and “-” marks. For example, a “3+” in extracurriculars is superior to a “3”, which in turn bests a “3-”.
Much of SFFA’s case focuses on the “personal rating,” which encompasses recommendations, personal statements, alumni interviews and other subjective inputs intended to “measure the positive effects applicants have had on the people around them.” SFFA insists that “Asian American applicants to Harvard receive substantially lower personal ratings than white applicants” and maintains that this pattern reveals “the wolf of racial bias.”
Recruited varsity athletes are generally assigned a “1” rating. They are high school stars sought by Harvard coaches. Applicants given a “2” aren’t recruited but are still impressive and could join Crimson teams. They show a “strong secondary school contribution” in athletics and evidence of a “possible leadership role.” Applicants scoring a “3,” meanwhile, exhibit “active participation” in athletics. They play sports but do not necessarily excel at them relative to the competition. Those scoring between “4” and “6” either seldom play sports or are unable to play due to family commitments, work responsibilities or physical conditions. Lower ratings for athletics are not considered a negative (in contrast, a low score in academics would be a negative).
The number of Harvard applicants scoring a “1” for athletics are, in the words of Judge Lynch, “exceedingly rare.” Data from a recently analyzed period reveals that less than one percent—0.82%, to be precise—were awarded a “1.” This tracks the scarcity of 1s in other categories. Only 0.45% of applicants received an academic rating of “1,” and a scant 0.31% did so for extracurriculars. Athletes who scored a “1” were well positioned for acceptance: 86% were offered admission. That was a higher acceptance than for those earning a “1” in one of the other categories, including academics (69%).
Athletics also plays a role in so-called “tips.” These are “plus factors” ascribed to certain applicants. Tips are awarded to applicants who exhibit “outstanding and unusual intellectual ability” and “outstanding capacity for leadership.” Tips are also awarded for, among other factors: race and ethnicity; legacy status; being the child of faculty or staff; and being a recruited athlete.
Data further shows that applicants who are so-called “ALDCs”—“Athletes, Legacy applicants, Dean’s interest list applicants, and Children of faculty or staff”—are much more likely to be accepted. ALDC applicants also tend to be “more white” and less Asian American. In a recent count, ALDC applicants were 68% white, 11% Asian American, 6% African American and 6% Hispanic. Non-ALDC applicants, in contrast, were 40% white, 28% Asian American, 13% Hispanic and 11% African American.
The crux of the SFFA’s case was apparent in lead counsel Adam Mortara’s opening statement. He stressed, “Harvard College discriminates against Asian American applicants, specifically those applicants ineligible for Harvard’s sizeable preferences for recruited athletes [and other groups].” The case has also included discussion about the possibility of eliminating the tip for athletic skill and recruited athletes. School officials insisted that athletics help to build a strong sense of community identity—the famed Harvard-Yale football game was noted—and that athletes often have diverse backgrounds and experiences.
SFFA’s legal argument centers on Title VI of the Civil Rights Act. Title VI makes it unlawful to exclude a person on the basis of race from any program receiving federal money. Colleges, which receive grant money and financial aid benefits, fall under Title VI’s purview. The use of race in college admissions is subject to “strict scrutiny” analysis. Harvard must show its policy furthers a compelling interest and is narrowly tailored.
Harvard convinced both the district court judge (Judge Allison Burroughs) and the appellate court that it possesses a compelling interest in student body diversity and that its race-conscious admissions process was narrowly tailored to achieve that goal. The school insisted that it has refrained from the use of quotas or “racial balancing” math computations. Similarly, it has avoided “target numbers of certain races.” The courts also noted that Harvard has increased its share of Asian American admitted applicants about five-fold since 1980. Further, elimination of race as a factor would lead to a drop in African American representation (14% to 6%) and Hispanic representation (14% to 9%).
SFFA is expected to appeal. Ordinarily, the first step would be a petition for an “en banc” rehearing before the entire First Circuit bench. Such petitions are rarely granted. SFFA would then petition the Supreme Court to grant a writ of certiorari. Four of the nine justices would need to agree.
Although a recent Harvard Law Review study found that only 1.2% of petitions were granted cert, the case’s significance could attract the justices’ attention. In a narrow 4-3 vote in 2016, the Supreme Court upheld affirmative action policies at the University of Texas. The Court’s membership has changed since that time, including through the appointments of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Still, precedents are seldom overturned due to the principle of “stare decisis,” which instructs that the Court should follow past decisions.