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What is legal affirmative action? Harvard's race-conscious admissions go to court.

"For a university’s race-conscious policy to be considered legal, they must show that race-neutral methods of diversifying their students are not enough."
Image: Harvard University's campus
Harvard University's campusDarren McCollester / Getty Images file

One side accuses the other of using subjective “personal ratings” to discriminate against Asian-American university applicants. The other says that "race alone is never the reason a student is granted admission.”

Court arguments began this week in Students for Fair Admissions v. Harvard, a lawsuit in which a group of Asian-American students allege that Harvard University discriminated against them on the basis of their race. In its lawsuit, Students for Fair Admissions, a group led by Edward Blum — a consistent opponent of affirmative action — accuses Harvard’s admissions policies of being unlawful because they engage in “racially balancing” and fails to consider race-neutral admissions plans, among other accusations. Harvard has denied the allegations.

The case, in which more than a dozen friend-of-the-court briefs have been filed and which opened to a full courthouse with observers in overflow rooms, is being closely watched as it could affect race-conscious admissions policies at elite colleges across the U.S. It is expected to take three weeks.

The trial shines a spotlight on affirmative action, the practice by some universities to take an applicant’s race into account for admission. Elite schools have held that affirmative action can help them achieve a diverse student body, allowing for a free exchange of ideas and giving minority students pathways to leadership after college.

But there are restrictions that such programs must meet to be legal, according to Rachel Moran, a law professor and dean emerita at UCLA School of Law who has researched affirmative action.

For one, since a 1978 Supreme Court case, college applicants to a program have had to be pooled together and compete against one another.

“The opinion made very clear that you cannot have segregated admissions processes so that some groups apply to one program and others to a different one,” Moran said, adding that the court found that while race could be taken into account, it could not be used a “decisive factor in the sense that a certain number of students from a particular racial or ethnic background will be enrolled — so no quota systems.”

For a university’s race-conscious policy to be considered legal, they must also show that race-neutral methods of diversifying their students — such as plans in which a certain percentage of top students at their high school are offered admittance, policies based on socioeconomic status, or programs based on a student’s area of academic interest — are not enough to achieve their goals.

“The court said that schools have academic freedom to decide what they need in the composition of the student body to advance the learning process,” Moran said. “But they have to show that what they’re doing is necessary, that there is no alternative that will achieve the same goal that doesn’t rely on race.”

Several states have also passed laws that require government institutions — including state universities — not to take race into account, including California, Washington and Michigan.

The Harvard case comes at such a time when the role of race in university admissions is being called into question.

In 2011, the Departments of Education and Justice under President Barack Obama issued guidelines based on court opinions on how universities may take race into account in their admissions if they desire. While the court opinions underlying those guidelines remain valid, the Trump administration withdrew them in July.

And in August, the Department of Justice expressed support for the student group suing Harvard.

“No American should be denied admission to school because of their race,” Attorney General Jeff Sessions said at the time.

The Trump administration has also opened an investigation into Yale’s admissions practices.

But while the Harvard case is being widely watched, Moran noted that it may not have much bearing on the admissions policies of schools not considered elite, which reject far fewer applicants.

There are also ways the case could be decided outside of the allegations concerning race-based admissions, she added.

“However, I think a lot of people believe because the Justice Department has taken the position that they really do want to tackle the race-based admission, this very well may be decided on those grounds and go up to the high court," Moran said, referring to the Supreme Court. "We just don’t know.”

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