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New Affirmative Action Suit Targets Harvard, UNC

New lawsuits were filed in federal court Monday against both Harvard University and the University of North Carolina, seeking to abolish the affirmative action admissions policies used at both schools.

The Project on Fair Representation (POFR), which is spearheading the suit on behalf of a new organization called Students for Fair Admissions, argues that both Harvard and UNC follow policies that admit African Americans and Hispanics over better-qualified Asians. In the case of Harvard, POFR also accuses the school of having a hard quota for how many Asians are admitted to the school, which they compare to the school’s quota on Jews that existed prior to World War II.

The lawsuit represents a follow-up effort to Fisher v. University of Texas, a 2013 Supreme Court case in which POFR fell short in an effort to have all racial affirmative action abolished.

In that case the court ruled that racial affirmative action may be acceptable in order to achieve diversity at a school, but that such affirmative action is subject to “strict scrutiny,” the highest standard of judicial review for a policy. Under strict scrutiny, a narrow violation of certain constitutional rights is acceptable as long as it achieves a compelling government interest and there is no alternative method of achieving that interest other than said restriction.

In these new lawsuits, POFR argues that UNC and Harvard cannot meet the burden of strict scrutiny because other, more constitutional means could be used to establish diversity. Schools could promote diversity, it says, by giving greater weight to socioeconomic status, offering more financial aid, and eliminating early decision admissions.

The lawsuit represents new territory in the campaign by activists seeking to abolish affirmative action. In the past, efforts have focused exclusively on public universities. Harvard, however, is a private university, which traditionally have had more leeway to set their own policies. The new lawsuit argues that despite its private status, Harvard is still subject to the 14th Amendment’s Equal Protection Clause via Article VI of the 1964 Civil Rights Act, which prohibits racial discrimination by all institutions receiving federal funds.

Both schools have defended their admissions policies, with Harvard telling the Associated Press that their holistic approach to applicants had been explicitly held up as acceptable by the Supreme Court in its 1978 ruling University of California v. Bakke.

However, according to POFR, Harvard’s holistic admissions are really just a thin veneer for a highly racially-oriented policy. Their lawsuit points out that Harvard’s Asian population rose swiftly throughout the 80s and early 90s (as America’s Asian population surged) but then abruptly stagnated in the 90s at around 16.5 percent and has barely moved since.

In comparison, at schools that explicitly do not use racial affirmative action, such as Caltech and the University of California system, Asians are about twice as common as they are at Harvard. Harvard’s efforts to keep the number of Asians down are so great, POFR says, that two different applicant pools exist, one for Asians and one for everybody else.

“Asian Americans understand that they are not competing for admission to Harvard against the entire applicant pool. In light of Harvard’s discriminatory admissions policies, they are competing only against each other, and all other racial and ethnic groups are insulated from competing against high-achieving Asian Americans,” the lawsuit says.

Edward Blum, PFOR’s director, said in a statement that the lawsuits are just the first of what is planned to be many, in what is likely a strategy to encourage schools to abandon affirmative action out of fear of costly litigation. He explicitly alluded to that motivation when referring to UNC, noting that it faced “years of expensive and polarizing litigation” if it failed to adjust its policies.

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