After anti-affirmative action organization Students for Fair Admissions submitted its appellate brief against Harvard to the First Circuit Court of Appeals on Feb. 19, experts said the case will likely continue for the foreseeable future.
SFFA filed its initial lawsuit in 2014, arguing that Harvard’s admissions practices had violated anti-discrimination policies enumerated in Title VI of the Civil Rights Act of 1964. The organization specifically accused Harvard of penalizing Asian American applicants.
District Court judge Allison D. Burroughs ruled against all four charges made against Harvard on Oct. 2, 2019, determining that its race-conscious admissions process does not discriminate against Asian Americans. Later that day, SFFA president Edward J. Blum indicated intentions of appealing the ruling to the First Circuit in a press release later that day.
SFFA’s appeal — submitted earlier this month — specifically called into question the district court’s application of “strict scrutiny” in the case against Harvard’s admissions program. The United States Department of Justice and various Asian American-affiliated organizations also submitted amici briefs, calling for a reconsideration of the district court ruling.
Unless the court grants Harvard extra time, it must submit its own brief by May 14. A week later, outside groups will have a chance to support the University’s case in their own amici briefs.
Some experts said they believe Harvard and SFFA will continue to trade legal barbs in the appeals process, and beyond.
NAACP Legal Defense and Educational Fund Senior Counsel Michaele Turnage Young outlined a potential timeline following Harvard’s May 14 brief.
“To the extent that SFFA chooses to file a reply brief, they'll be filing that by June 4. I expect that the First Circuit will grant oral argument, though it's unclear at this point,” Turnage Young said. “But I imagine that that may happen three to four months after the briefing is done, so maybe around September, October of 2020. It's anybody's guess as to when the First Circuit will issue a decision.”
“It is likely that whoever loses in the appellate process may be inclined to file a writ of certiorari with the U.S. Supreme Court,” she added.
University of Pittsburgh professor of urban education Dana N. Thompson Dorsey also said she expects the case to reach the nation’s highest court, echoing long-held beliefs about the suit.
“So all of this is a legal game right now: a game of chess to get this before the United States Supreme Court, and it will happen,” she said.
Thompson Dorsey added that, if the Supreme Court does eventually agree to hear the case, she believes the court’s political balance could imperil race-based admissions policies.
“I believe all of this is to get this case before the Supreme Court because of the five conservative justices that are currently sitting on the court,” she said.
Regardless of future verdicts in the case, Tufts Sociology Professor Natasha K. Warikoo said she believes Harvard has adequately demonstrated that its policies past constitutional muster.
“I think the U.S. Supreme Court has repeatedly affirmed that it is legal to consider race in college admissions under these circumstances; if you don’t have any other race-neutral alternatives, if there’s a compelling interest, and it’s contributing to campus diversity, and I think that Harvard was able to demonstrate those things,” she said.
—Staff writer Benjamin L. Fu can be reached at firstname.lastname@example.org. Follow him on Twitter @BenFu_2.
—Staff writer Dohyun Kim can be reached at email@example.com.