Why are Asian students suing Harvard for affirmative action policies?

The Students for Fair Admissions charge that reliance on affirmative action in college admissions at the University of North Carolina at Chapel Hill and Harvard University unfairly penalize some students.

The role of affirmative action in college admissions is under fire once again this week as two new lawsuits filed Monday call into question whether Harvard and the University of North Carolina at Chapel Hill give sufficient priority to use race-neutral admissions criteria.

The cases, brought by some of the same individuals behind the Fisher v. University of Texas at Austin case that made its way to the Supreme Court last year, this time highlight the injustices that Asian-Americans may suffer through race-based admissions policies, and also seek to enforce the Supreme Court's Fisher decision that race should only be used as a criterion after other means of achieving diversity have been tried.

While it's unclear if the lawsuits will be successful, Students for Fair Admissions, which brought the suits, made clear that these are just the first in a series of similar challenges questioning the admissions policies of competitive schools.

The lawsuits are important for several reasons, says Richard Kahlenberg, a senior fellow at The Century Foundation who consulted with the plaintiffs in this case on race-neutral alternatives to achieving diversity.

"These lawsuits have a broader appeal to the public in the sense that Asian-American students are highlighted," Mr. Kahlenberg says. "And these are the first cases to come out in reaction to the Fisher v. University of Texas decision.... This case is one that could appeal to liberals as well as conservatives."

The lawsuit filed against Harvard cites an Asian-American student who was denied admission despite being valedictorian of a competitive high school, achieving a perfect ACT score and a perfect score of 800 on two of the SAT II subject exams, and participating in numerous extracurricular and volunteer activities. The applicant, the lawsuit states, was "denied the opportunity to compete for admission to Harvard on equal footing with other applicants" due to his race.

The suit cites statistical evidence to claim that Harvard holds Asian applicants to a "far higher standard than other students" and that Harvard uses "racial classifications to engage in the same brand of invidious discrimination against Asian Americans that it formerly used to limit the number of Jewish students in its student body."

Both Harvard and the University of North Carolina issued statements Monday strongly defending their admission policies.

Harvard noted that in the seminal 1978 Bakke Supreme Court decision, which upheld the idea of affirmative action and set the stage for future policies, Justice Lewis Powell Jr. specifically cited Harvard's policy as a model.

"Then and now, the college considers each applicant through an individualized, holistic review having the goal of creating a vibrant academic community that exposes students to a wide-range of differences: background, ideas, experiences, talents and aspirations," said Robert Iuliano, Harvard's general counsel, in a statement. 

UNC defended its policy as well, and noted that in 2012, the US Department of Education's Office of Civil Rights determined that UNC's use of race in admissions was in accordance with federal law.

In last summer's Fisher decision, however, the Supreme Court sent the case back to the lower courts for further review, affirming that race should only be used in admissions when diversity can't be achieved by other means.

And this latest round of lawsuits spends significant time outlining other race-neutral policies that Harvard or UNC could use, including limiting legacy preferences, increasing financial aid to attract minority students, and giving preference based on socioeconomic measures or zip codes. Several universities that have abolished race as a criterion have maintained or increased their number of African-American and Hispanic students using such policies, the lawsuits say.

In the lawsuit against UNC, the plaintiffs note that the school acknowledged in a brief it filed in the Fisher case that if it used a race-neutral plan by which it automatically admitted the top 10 percent of each North Carolina high school class, it would actually increase its minority enrollment.

The lawsuits essentially have two purposes, says The Century Foundation's Kahlenberg: enforcing the Fisher decision that race-neutral policies be tried before race-based admissions policies, and – more sweepingly – to try to overturn the Bakke decision and eliminate the use of race in admissions entirely.

"The Harvard challenge really strikes at the fountainhead of modern affirmative action jurisprudence," says Kahlenberg, given the fact that Harvard was cited in the Bakke case. "Because the plaintiffs are suggesting that the Harvard system in fact hurts Asian-Americans and so it shouldn’t be a model."

At SCOTUSblog, Lyle Denniston similarly believes that this latest round of lawsuits is an attempt to end race-based affirmative action for good.

"The saga over the use of race in selecting new college entrants that began with the Supreme Court’s famous ruling in Regents of the University of California v. Bakke nearly four decades ago now has a new chapter – and it is intended to be the final one," Mr. Denniston writes, noting that both suits were put together by Edward Blum, the same activist behind the Fisher case. The cases were clearly designed, he says, to build a case in the lower courts so that in several years the Supreme Court can weigh in. "The lawsuits do not ask the courts to abandon the idea that racial diversity among college students is a valid educational goal. Instead, they contend that diversity can be achieved by race-neutral alternatives."