- The Washington Times - Thursday, November 12, 2020

A federal appeals court Thursday upheld a lower court ruling that Harvard University’s admissions policies do not intentionally discriminate against Asian American students, setting up a Supreme Court battle over one of the nation’s top affirmative action fights.

The U.S. Court of Appeals for the 1st Circuit held in a two-judge opinion that Harvard’s limited use of race in its admissions process is necessary to achieve diversity and consistent with federal law.

“Harvard has demonstrated that it values all types of diversity, not just racial diversity. Harvard’s use of race in admissions is contextual and it does not consider race exclusively,” wrote Judge Sandra Lynch, a President Clinton appointee.

A three-judge panel had heard the case in September, but one of the judges, Juan Torruella, died last month before the case was decided.

The lawsuit was filed in 2014 by Students for Fair Admissions, a group representing several Asian American plaintiffs who alleged the university discriminated against them to lower their representation on campus.

In 2018, the lawsuit received a boost when former Attorney General Jeff Sessions filed a statement of interest in support of the student group.

Harvard has defended its practices, saying it values race as one factor on a list of many in order to have different cultures represented on campus.

The appellate court, in siding with Harvard, cited earlier Supreme Court rulings concluding that considering race to achieve campus diversity is constitutional.

Edward Blum, president of Students for Fair Admissions, vowed Thursday to take the case to the Supreme Court.

“While we are disappointed with the opinion of the First Circuit Court of Appeals, our hope is not lost,” Mr. Blum said in a statement. “This lawsuit is now on track to go up to the U.S. Supreme Court, where we will ask the justices to end these unfair and unconstitutional race-based admissions policies at Harvard and all colleges and universities.”

A Harvard spokesperson said the decision shows that its admissions policies “lawfully and appropriately create a diverse campus that promotes learning and encourages mutual respect and understanding in our community.”

“As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity,” said Harvard spokeswoman Rachel Dane.

The Justice Department and Students for Fair Admissions had insisted there was compelling evidence that Harvard’s policies disadvantage Asian students.

Harvard uses a “personal rating” that includes subjective factors including “likability” and whether someone is a “good person” with “human qualities,” according to court documents.

The school has admitted that, on average, it has ranked Asian American applications lower on these qualities, the Justice Department said.

Students for Fair Admissions told the court that an Asian American man with a 25% chance of admission would have a 35% chance if he were White, a 75% chance if he were Hispanic and be nearly a shoo-in at 95% if he were Black, the group calculates.

Put another way, Asian Americans should account for more than 43% of the students admitted based on academic standards, the student group says. Instead, the number was 18.7% in 2017, according to the Students for Fair Admissions lawsuit.

But the court rejected that model, saying the statistical differential between the admissions of Asian Americans to other races is only significant in one of the six years it analyzed.

“In five of the six admissions cycles, the effect is statistically indistinguishable from zero,” Judge Lynch wrote. “Indeed, in two years, the model shows that Asian American identity actually has a positive effect on an applicant’s chance of admission to Harvard.”

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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