Thursday, July 5, 2018

MEMO: Information Concerning Harvard Lawsuit

July 5th, 2018

To: Shirley Wilcher, Executive Director AAAED

From: Alicia Quiñones, Intern AAAED

RE: Information Concerning Harvard Asian-American Student Lawsuit

The following is the statement posted on the Students for Fair Admissions website concerning the lawsuits filed against Harvard University and University of North Carolina-Chapel Hill. 


Seeks additional students recently rejected from competitive universities

(Washington, DC) Today, the Project on Fair Representation announces the filing of two lawsuits challenging the racial preference admissions policies of Harvard and the University of North Carolina-Chapel Hill.

The plaintiff in both lawsuits—Students for Fair Admissions (SFFA)— is a newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to both schools, highly qualified students who plan to apply to both schools, and their parents.

The Harvard lawsuit alleges the university is engaging in a campaign of invidious discrimination by strictly limiting the number of Asian Americans it will admit each year and by engaging in racial balancing year after year. These discriminatory policies in college admissions are expressly forbidden by the Fourteenth Amendment and federal civil rights laws.

Students for Fair Admission’s complaint highlights data and analysis that strongly suggests that white, African-American, and Hispanic applicants are given racial preferences over better-qualified Asian-Americans applying for admission to Harvard.

Additionally, the complaint demonstrates that Harvard is not in compliance with the new “strict scrutiny” standards articulated in 2013 by the U.S. Supreme Court in Fisher v. The University of Texas at Austin. The Fisher opinion unambiguously requires schools to implement race-neutral means to achieve student body diversity before turning to racial classifications and preferences.

The UNC-Chapel Hill lawsuit alleges that, like Harvard, the University is not in compliance with the new Fisher strict scrutiny requirements. Students for Fair Admissions explains in its complaint that UNC has admitted in an amicus brief it submitted to the Supreme Court in the Fisher case that the school can maintain, and actually increase, racial diversity through race-neutral means if it ends its race-based affirmative action policies. Students for Fair Admissions argues that this compels the university to end its racial classifications and preferences and adopt some combination of race-neutral policies instead.

The discrimination against Asian-Americans at Harvard and both schools’ blatant failure to comply with recent Supreme Court directives with regard to race preferences are emblematic of the behavior of the vast majority of competitive colleges throughout the country. Because of this, Students for Fair Admissions asserts in its complaints that racial classifications and preferences in college admissions are (no longer) administrable; a violation of the Fourteenth Amendment and federal civil rights laws; and must be ended as a matter of policy and law.

Edward Blum, the director of the Project on Fair Representation, said, “These two lawsuits are the first of what are expected to be several similar challenges to other competitive colleges that continue to unconstitutionally use racial preferences in admission decisions. Students for Fair Admissions encourages any student who was recently rejected from a competitive university to contact us at”

The Harvard complaint documents the school’s long, irrefutable, history of instituting admissions policies to limit the number of Jewish students beginning in the 1920’s. The “Harvard Plan” itself—and the concept of an admissions system based on a “holistic” review of applicants instead of admission based on academic accomplishment—was formulated for the specific purpose of discriminating against Jews. Harvard’s “holistic review” today is primarily a similar tool to limit the number of Asian Americans it admits each year.

Blum continued, “It is especially disconcerting that public data shows that Harvard has purposefully limited the percentage of Asian-American freshman it admits. In fact, the number of Asian-Americans Harvard admits today is lower than it was 20-years ago, even though the number of highly qualified Asian-American applicants to Harvard has nearly doubled. Harvard’s discrimination against Asian-Americans is as deeply troubling today as was the discrimination against Jewish applicants that Harvard perpetrated in the name of ‘holistic’ admissions years ago.”

Blum concluded, “The University of North Carolina at Chapel Hill has no need to continue to use racial and ethnic preferences and should end them now instead of facing years of expensive and polarizing litigation.”

Counsel for SFFA is Mr. William Consovoy and Mr. Thomas McCarthy of Consovoy McCarthy PLLC based in Arlington, Virginia.

The Project on Fair Representation (POFR) is a not-for-profit legal defense fund program that is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts. POFR provided counsel in a number of recent Supreme Court cases including, Northwest Austin Municipal Utility District No. One v. Holder; Abigail Fisher v. Univ. of Texas at Austin; and Shelby Co., Alabama v. Holder.”


Harvard has responded to the court filings in saying that their admissions process is legal and does not participate in the “racial balancing” mentioned. The school stated that the students are misinterpreting the data shared to the public in the 2013 and that the school “does not discriminate against applicants from any group, including Asian-Americans, whose rate of admission has grown 29 percent over the last decade."[1]

Harvard stated that the study cited by the student group was, “incomplete, preliminary and based on limited inputs,” and “was not designed to evaluate whether Harvard was intentionally discriminating and reached no such conclusion.”[2]

The school also wrote that “the documentary and testimonial evidence about Harvard’s admissions process demonstrates that Harvard carefully considers every applicant individually, using the same thorough reading and committee procedures for all applicants.”[3]

Based on the court filing from 2013, “the Harvard Office of Institutional Research created four models that included different racial categories to see what hypothetical percentage of students would be admitted based on various criteria. 

When only academics were considered, Asians made up 43 percent of the admitted class, the document said. After accounting for recruited athletes and legacies, that figure dropped to 31 percent, and for extracurricular and personal ratings, 26 percent.

The actual share of admitted Asian Americans cited in the report was 19 percent, the Students for Fair Admissions court filing said.”[4]

See below admission rates based on differing criteria models at Harvard University:

If the court filings submitted by the student organization go to court, the trial could be expected to take place in October of this year. Additionally, the Justice Department is looking into the admissions process used by Harvard as it regards to race.


The Trump administration on Tuesday, July 3rd rescinded Obama-era guidance on how colleges can legally consider race and ethnicity in admissions decisions. In addition, the Department of Justice has stated that it will be backing the plaintiffs in the suit concerning Harvard admissions policies arguing that Harvard discriminates against Asian-American applicants. 

Harvard released a statement that indicated that the university had no plans to change any policy as a result of what happened Tuesday. "Harvard will continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years," the statement said. "Harvard is deeply committed to bringing together a diverse campus community where students from all walks of life have the opportunity to learn with and from each other."[6]

The following is a conversation with Anurima Bhargava, who led civil rights enforcement in school at the Justice Department under Obama and the publication Mother Jones about the implications of the rescission of Obama-era affirmative action guidance: 

Mother Jones: What was the original intent of the guidances that the Trump administration rescinded today?

Anurima Bhargava: They were put together to explain how schools, colleges, and universities could promote diversity and address segregation and racial isolation in ways that were consistent with the existing law. They were meant to be a tool and resource. They were not making up new law and were more of a resource for schools to use as they established student assignment plans and admissions policies. The second part of the guidances was to signal something that’s been consistent with the Supreme Court for many, many years, which is that promoting diversity and addressing segregation are important to the country, to the education of our children, and that we have a situation where kids can come together and feel like they are welcomed and comfortable and not in such few numbers that they are tokens in our schools.

MJ: Could you explain what the Trump administration’s decision today accomplishes? 

AB: The law has not changed. The Trump administration decided to take down these guidances at this moment when there haven’t been any changes in the law. We’ve seen again and again the Supreme Court come out and say that there are permissible ways for schools to be able to promote diversity and prevent racial isolations. To remove the guidances now can only be described as a political attack on efforts to bring communities together and as a policy of separation and division.

MJ: What does the administration’s decision mean for colleges and universities following the Obama-era guidance? 

AB: I don’t know what the impact will be. What I hope is that colleges and universities and schools realize that the law hasn’t changed and that this doesn’t serve as a deterrent or discouragement from taking steps that they have wanted to take. These guidances were not talking about court-ordered desegregation or something like that. They were talking about when schools and colleges and universities want to try and promote diversity amongst their student body and how they are able to do that. I hope they continue to want to pursue those important and necessary goals. For them to take down this guidance right now, at a time when we see far too many incidents of racial violence and deepening tensions, is not the way that the federal government should support colleges and universities that are trying to do this kind of work.”[7]

Point of Reference
The following is a letter from the Department of Education and Justice about the what documents were to be rescinded.

“The purpose of this letter is to inform you that the Department of Justice and the Department of Education are withdrawing the following documents:

     December 2, 2011 Dear Colleague Letter Regarding the Use of Race by Educational Institutions;
     2011 Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education dated December 2, 2011;
     2011 Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools dated December 2, 2011;
     September 27, 2013 Dear Colleague Letter on the Voluntary Use of Race to Achieve Diversity in Higher Education After Fisher v. University of Texas at Austin [Fisher I];
     September 27, 2013 Questions and Answers About Fisher v. University of Texas at Austin [Fisher I];
     May 6, 2014 Dear Colleague Letter on the Supreme Court Ruling in Schuette v. Coalition to Defend Affirmative Action; and
     September 30, 2016 Questions and Answers About Fisher v. University of Texas at Austin [Fisher II].

These documents purport to explain the legal framework that governs the use of race by elementary, secondary, and postsecondary schools under the Constitution, Title IV of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq., and Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq.  The documents advocate specific policies and procedures for educational institutions to adopt, analyze a number of hypotheticals, and draw conclusions about whether the actions in those hypotheticals would violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution or Title IV or Title VI of the Civil Rights Act of 1964. 

The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI.  Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law.  By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents.  

Accordingly, the Department of Education and the Department of Justice have decided to withdraw the documents.  The protections from discrimination on the basis of race guaranteed by the Constitution, Title IV, and Title VI remain in place.  The Departments are firmly committed to vigorously enforcing these protections on behalf of all students.  
This guidance does not add requirements to applicable law.  If you have questions or are interested in commenting on this letter, please contact the Department of Education or 800-421-3481 (TDD: 800-877-8339); or the Department of Justice or 877-292-3804 (TTY: 800-514-0383). 

/s/                                                                               /s/
Kenneth L. Marcus                                                   John M. Gore
Assistant Secretary for Civil Rights                           Acting Assistant Attorney General
U.S. Department of Education                                  U.S. Department of Justice”


Jeannie Suk Gersen, a professor at Harvard Law School wrote a piece for the New Yorker titled, “The Uncomfortable Truth About Affirmative Action and Asian Americans” address the recent Harvard lawsuit. “This lawsuit, and much of the discussion of affirmative action that surrounds it makes a serious error in assuming that, in order to stop discrimination against Asian applicants, race-conscious affirmative action must end.”[8]

Suk Gersen states that affirmative action is “perfectly compatible with tackling the discrimination at issue. The problem is not a race-conscious holistic review; rather, it is added, sub-rosa deployment of racial balancing in a manner that keeps the number of Asians so artificially low relative to whites who are less strong on academic measures.” 

Suk Gersen closes by mentioning that for the first time, racial minorities are a majority of this year’s entering class at Harvard and the Asian enrollment is the highest ever at over 22 percent with their increased share cutting into the white student population a Harvard and not the Black or Latino population. is an Asian American based organization whose purpose is to unify online and offline the Asian American community and identity. They released a statement titled, “Edward Blum, We Won’t Be Used For Your Racist Agenda,” explaining that Edward Blum’s agenda to dismantle affirmative action is using the Asian-American student population at Harvard as a “political wedge against affirmative action” by “cherry-picking data” for the court filings. 

18MR stated that Blum is “intentionally exploiting the Model Minority myth by suggesting that the challenges of race can be overcome merely by hard work, but he also claims race-conscious considerations are actually hurting Asians by passing us up in favor of Blacks and Latinos. Blum claims to be protecting the interests of Asian Americans by fighting to end affirmative action – despite the fact that 76% of Asian Americans say they support the policy (affirmative action policies).”[9]

Michele S. Moses, University of Colorado; Christina Paguyo, Colorado State University, and Daryl Maeda, University of Colorado released an article discussing Harvard student lawsuit. They are among other academic scholars who agree that Asian-Americans largely benefit from affirmative action policies and their claims against such are greatly inaccurate.[10]

See link below for full article:

See also for further opinions: 
“Bias against Asian-American students is real. Affirmative action isn’t the problem,” by Stacey J. Lee and Kevin K. Kumashiro. June 27, 2018.


[1]Chappell, Bill. NPR News. “Harvard Accused Of 'Racial Balancing': Lawsuit Says Asian-Americans Treated Unfairly,” June 15, 2018.
[2]Fuchs, Chris. NBC News.“Lawsuit accuses Harvard of discriminating against Asian-American applicants in 'personal ratings,” June 18, 2018.
[5]Scott Jaschik. Inside Higher Ed. Smoking Gun on Anti-Asian Bias at Harvard? June 18, 2018.

[6]Jaschik, Scott. Inside Higher Ed. “Trump Administration Rescinds Guidance on Affirmative Action,” July 5, 2018.
[7]Rios, Edwin. Mother Jones. “What Trump’s Plan to Ignore Race in School Admissions Actually Means for Students,” July 3, 2018.

[8]Suk Gersen, Jeannie. The New Yorker.“The Uncomfortable Truth About Affirmative Action and Asian Americans,” August 10, 2017.
[10]Moses, Michele S., Paguyo, Christina. Maeda, Daryl. “The missing elements in the debate about affirmative action and Asian-American students,” July 16, 2018. 

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