Harvard and UC Lawsuits Question the Use of Race in Admissions

Following the federal lawsuit filed against Harvard for its use of race in admissions, a lawsuit was filed in November against the University of California seeking admissions data pertaining to its use of race in admissions. While Harvard openly embraces affirmative action and considers race and ethnicity in its efforts to build a diverse class, the University of California is forbidden under state law from considering race or ethnicity in admissions following the 1996 passage of Proposition 209.

Both of these lawsuits are being spearheaded by opponents of affirmative action, partnering with Asian American groups. The Harvard case, Students for Fair Admissions v. Harvard, is the brainchild of Edward Blum, anti-affirmative action activist who previously recruited Abigail Fisher to challenge the University of Texas’s use of race in admissions. Blum founded Students for Fair Admission and serves as its president. Under the aegis of Students for Fair Admission, Blum is leading suits against Harvard and UNC. In California, a vocal anti-affirmative action advocate, Richard Sander, professor of law and economics at UCLA and coauthor of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, is leading the suit against the University of California. Sander partnered with the newly founded advocacy group, Asian American Community Services Center (AACSC), led by George Shen.

Sandler and Shen are pressing UC to release data pertaining to admissions outcomes and race, following the 2018 publication of a study by UCLA sociologist Robert Mare, which indicated that between 2007 and 2011, Asian American students were consistently disfavored in the admissions process. Sandler argues that UC seems to have complied with its mandated race-neutral admissions policy from 1998-2006, but seems to have reintroduced race as a factor starting in 2007. Sandler is seeking admissions data to conduct analyses similar to that completed by Robert Mare, but UC has not complied with his requests.

The data indicate that Asian American students are receiving a relatively smaller proportion of seats at top UC schools today, compared to 2006. Examining the Common Data Set for UC Berkeley, the Asian share of incoming freshman class spots has declined over the last decade.

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Similarly, the percentage of Asian Americans at UCLA has declined over the same period. According to the UCLA undergraduate profile, the freshman class profile has shifted significantly: ‍

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These changes in student demographics do not necessarily reflect discriminatory practices, but Sandler wants to investigate the complete dataset to come to his own conclusion.

In the grand scheme, the UC case is relatively minor, compared to the Harvard case, which has the potential to ultimately upend affirmative action in the domain of higher education. If we learned anything from Fisher v. Texas, it’s that nothing happens quickly in the realm of affirmative action and the legal system. Fisher was ruled upon at the district court level in 2009 and didn’t lead to a final Supreme Court ruling until 2016.

If the Supreme Court votes to hear the Harvard case when the time comes, Chief Justice Roberts will hold the fate of affirmative action in his hands. In Fisher v. Texas, Sotomayor, Ginsburg, Breyer and Kennedy upheld the limited use of race in admissions, with Alito, Roberts and Thomas dissenting. Given the current composition of the Supreme Court, Alito, Roberts, Thomas, Gorsuch and Kavanaugh have the votes to end the legal use of race in admissions. This would have powerful implications for the American education system and would likely lead to a massive movement towards test-optional admissions, allowing schools to continue to admit more diverse classes. This ruling is years away if the Supreme Court agrees to hear the case, but colleges are undoubtedly watching the legal machinations closely and monitoring their policies accordingly.