Zoe Berg, Photo Editor

On Thursday, the First Circuit Court of Appeals upheld the 2019 ruling that Harvard does not discriminate against Asian Americans in admissions practices. The plaintiffs may now appeal the piece and elevate it to the Supreme Court, where a 6–3 conservative majority could rewrite precedent on affirmative action.

The Harvard admissions lawsuit began in 2014, when anti-affirmative action group Students for Fair Admissions sued Harvard University for their use of race in admissions to allegedly discriminate against Asian American applicants. In 2019, a district court ruled that Harvard did not discriminate against applicants based on race. SFFA filed to appeal the ruling this February. Following the Nov. 12 circuit court ruling, SFFA is hoping 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,” Edward Blum, president of SFFA, said in a statement released to the News. “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.”

The Harvard appeal is one of many affirmative action suits occurring right now. The United States Department of Justice sued Yale on Oct. 8, claiming that the University’s admissions policies discriminate against white and Asian American applicants. With President-elect Joe Biden’s victory in the presidential election, it is possible that the newly Democratic DOJ could drop their lawsuit against Yale. But on Oct. 27, SFFA filed a motion to intervene in the DOJ’s suit against Yale. Should the motion be granted, SFFA could continue the suit as a plaintiff in the case even if the DOJ were to drop it.

While the Trump administration has supported SFFA and endorsed their appeal of the Harvard ruling, the Yale lawsuit remains the only affirmative action case currently brought by the federal government, as opposed to a private plaintiff. SFFA is also engaged in a lawsuit against the University of North Carolina at Chapel Hill — the trial began on Monday — and they filed a lawsuit against the University of Texas at Austin in July.

Cara McClellan, assistant counsel at the NAACP Legal Defense and Educational Fund, told the News that it is “likely” that the Harvard case will escalate to the Supreme Court. McClellan serves as counsel in the SFFA v. Harvard lawsuit, in which the Legal Defense Fund represents 26 student and alumni groups who testified in favor of race-conscious admissions.

“I think the most important thing is that the First Circuit Court rightly followed what the Supreme Court has consistently held over the past four decades — that race is an important and permissible consideration among many factors within a holistic admission process for higher education,” McClellan told the News. “We’re talking about four decades of precedent. This isn’t a new question or a new issue. … The reality, though, is that we are in a time where the Supreme Court is more conservative than it has been at any point in modern history.”

McClellan says that there has been a “renewed effort” to challenge affirmative action, particularly by SFFA. She pointed to the Harvard appeal, the Yale case and the UNC case that began this Monday as examples.

Should the Harvard case reach the Supreme Court, the court can use the case to overturn previous affirmative action precedent. Should the Supreme Court rule against affirmative action, it would affect the ongoing Yale case, as well admissions policies nationwide.

The Yale Office of the General Counsel declined to comment on the ongoing Yale lawsuit. But in multiple emails to the Yale community, University President Peter Salovey has said that Yale will not change their admissions policies, and “look[s] forward to defending them in court.”

“I want to be clear: Yale does not discriminate against applicants of any race or ethnicity,” Salovey wrote in a communitywide email following the announcement of the DOJ’s lawsuit. “Our admissions practices are completely fair and lawful. Yale’s admissions policies will not change as a result of the filing of this baseless lawsuit.”

Affirmative action has been challenged and upheld in court multiple times since the Supreme Court originally ruled it constitutional in Regents of the University of California v. Bakke in 1978.

Amelia Davidson | amelia.davidson@yale.edu

Amelia Davidson was the University Editor for the Yale Daily News. Before that, she covered admissions, financial aid and alumni as a staff reporter. Originally from the Washington D.C. area, she is a junior in Pauli Murray College majoring in American studies.