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The Bellarmine Law Society Review 

Volume XI Issue I                  Article 4 

 

Affirmative Action in College Admissions: Successes and Failings 

Taline Ratanjee 
Boston College Lynch School of Education and Human Development, ratanjee@bc.edu 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 
 

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AFFIRMATIVE ACTION IN COLLEGE ADMISSIONS:  

SUCCESSES AND FAILINGS 
 

 
TALINE RATANJEE* 

 
 

Abstract: Although introduced in 1961, affirmative action policies continue to beget 
everyday conversations around and lawsuits against institutions of higher education. 
Students for Fair Admissions, a national advocacy organization that opposes the use of 
certain affirmative action policies in higher education, brought suit against Harvard 
University in 2017, arguing that the University discriminated against Asian-American 
applicants and therefore violated Title XI of the Civil Rights Act of 1964. This article 
discusses the arguments that both parties presented and provides an analysis thereof. The 
author’s personal assessment is included, though it was written in advance of the District 
and Appellate Courts’ recent verdicts. As Students for Fair Admissions v. Harvard is the 
latest in a series of high-profile cases against elite universities, this article seeks to provide 
a foundational understanding for how to approach similar cases that will undoubtedly arise 
in the future, some of which may even reach the Supreme Court. 

 

Introduction 

This article analyzes the key legal issues surrounding the 2017 litigation in Students for 

Fair Admissions v. Harvard, a Massachusetts District Court case concerning alleged admissions 

discrimination towards Asian Americans in violation of Title XI of the Civil Rights Act of 1964. 

In elucidating the contours of Students for Fair Admissions, this article evaluates previous college 

admissions cases that involve similar legal and ethical issues. Additionally, it provides an analysis 

of both the plaintiff’s and defendant’s positions.  

                                                             
* Taline Nicole Ratanjee is a fourth-year undergraduate student at Boston College pursuing a B.A. in Applied 
Psychology and a B.S. in Economics with a minor in Marketing. Her academic interests lie at the intersection of 
behavioral economics, social advocacy, and public policy. The author wishes to thank her parents, Joe and 
Georgette, for their unwavering love and support, and Professor Thomas Wesner for his guidance and inspiration.  
 



 
 

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This litigation was initiated considering the fact that over the last two decades, Asian 

American applicants saw the lowest acceptance rate of any other racial group applying to Harvard 

(roughly 8.1%). The plaintiff, Students for Fair Admissions, presented the Court with three 

primary arguments with respect to Harvard’s admissions practices: (1) the University engaged in 

intentional discrimination, (2) the University attempted to create racial-balancing, and (3) the 

University did not use race as a “plus factor” for the purpose of critical mass.1 The defendant, 

Harvard University, defended its case by: (1) rationalizing its admissions policies, (2) connecting 

its admissions policies to the creation of a diverse student body, and (3) asserting that its 

admissions policy was aimed at allowing all students to have a safe and welcoming environment 

at Harvard.2  

In addition to legal questions, many ethical issues arose in this litigation. As such, this case 

establishes certain principles dealing with admissions and diversity that will continue the legacy 

of affirmative action while also creating the potential for equitable reform. In this vein, Students 

for Fair Admissions v. Harvard will help set a precedent for the future of race-conscious 

admissions. 

A Brief History of Affirmative Action 

In 1961, President John F. Kennedy introduced the term “affirmative action” as a method 

to equalize discrimination that persisted in spite of civil rights laws and constitutional guarantees. 

Indeed, after the Supreme Court’s decision in Brown v. Board of Education (1954) and the passage 

of the Civil Rights Act of 1964, discrimination in public accommodations was prohibited on the 

                                                             
1 Students for Fair Admissions also presented “race-neutral alternatives” that Harvard could have employed. This 
will be discussed in the article’s conclusion (Chiu). 
2 By comparison, African-American applicants enjoyed an average acceptance rate of 13.2%, white applicants 
enjoyed an average acceptance rate of 13.2%, and Hispanic-American applicants enjoyed an average acceptance rate 
of 10.6% (Avi-Yonah et al.)   



 
 

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basis on race, color, religion, sex, and national origin. Following these precedents, President 

Lyndon Johnson eventually developed and enforced affirmative action policies to advance civil 

rights and equality.  

Beginning in the 1960s, colleges and universities adopted similar non-discriminatory 

admissions policies, prompting acceptance rates for minority students to increase. By 1978, 

however, flaws in affirmative action policies arose despite their good intentions: in Regents of 

University of California v. Bakke (1978), the Supreme Court ruled that the use of racial quotas was 

unconstitutional in the admissions process, though a school’s use of affirmative action to focus on 

admitting more minority applicants was constitutional. The debate about affirmative action 

persisted through the 2000s with two landmark cases concerning college admissions: in 2003, the 

Supreme Court made rulings Gratz v. Bollinger and Grutter v. Bollinger that established that 

certain affirmative action policies  promoted a “compelling state interest” in societal diversity. In 

2013 and 2016, litigation arose in Fisher v. University of Texas, ultimately concluding in a ruling 

that established that states which use race as a consideration in the admissions process are not 

acting in violation of the Equal Protection Clause of the Fourteenth Amendment.3 Now, the public 

eagerly awaits the results of likely appeals in Students for Fair Admissions because of the legal 

issues still outstanding. 

 

 

                                                             
3 In Fisher v. University of Texas (2013) (alternatively called Fisher I), 570 U.S. ____ (2013), the Court ruled that 
strict scrutiny should be applied to determine the constitutionality of a race-sensitive admissions policy. Fisher v. 
University of Texas (Fisher II) is helpful in understanding SFFA v. Harvard since Harvard has involved itself in the 
Fisher case, filing an amicus brief in November 2015. Harvard’s brief supported “UT Austin’s use of race-conscious 
admissions policies to create a diverse student body, writing that a diverse student population is a compelling 
interest that justifies race-conscious admissions in higher education” (Ellis).   



 
 

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SFFA Arguments Against Harvard’s Admission Policies 

SFFA first contends that Harvard’s admissions policy, also known as “The Harvard Plan,” 

intentionally discriminates against Asian Americans. In its brief, SFFA points to Harvard President 

A. Lawrence Lowell's quota on Jewish enrollment in the 1920s and 1930s, one de-emphasized 

academic achievement and instead relied on legacy preferences.4 Through this example, SFFA 

argues that Harvard employs an overly subjective analysis when considering Asian-American 

applicants. Furthermore, SFFA refers to Harvard’s statistical data in demonstrating that the “racial 

demographics of Harvard’s admissions and enrollment have remained stable over approximately 

the last decade, despite fluctuations in application rates.”5 SFFA also cites several studies that 

reveal disparities based on race indeed exist: for example, an Espenshade-Radford study concluded 

that Asian Americans are dramatically less likely to be admitted than otherwise similarly qualified 

Caucasian students.6  

With this quantitative background, SFFA asserts that Harvard’s personal rating of each 

applicant is significantly lower for Asian-American students than for other applicants, thus 

prompting many Asian-American students to be denied the equal opportunity to attend Harvard 

solely based on race. As a result of this system, SFFA concludes that Harvard University violated 

                                                             
4 Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action - Note.” 
Southern California Law Review, January 1, 2019. During the 1920s and 30s, Harvard established this quota by 
instituting a system that determined “character fitness and the promise of the greatest usefulness in the future as a 
result of a Harvard education” as a way to decrease the number of admitted Jewish students  
5 Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action - Note.” 
Southern California Law Review, January 1, 2019. “[B]etween 2003 and 2012, the percentage of Asian Americans 
at Harvard wavered only slightly above and below approximately 17 percent. . . . [D]espite the fact that, by 2008, 
Asian Americans made up over 27 percent of Harvard’s applicant pool, and approximately 46 percent of applicants 
with academic credentials in the range from which Harvard admits the overwhelming majority of students.” 
6 Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action - Note.” 
Southern California Law Review, January 1, 2019. 



 
 

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the Gratz precedent: that “overly mechanized” point systems violate the Equal Protection Clause 

of the Fourteenth Amendment.   

In its second argument, SFFA claims that Harvard’s admissions policy employs “racial 

balancing” to ensure a fixed quota of Asian Americans in its student body. SFFA deduced its claim 

by examining Harvard’s statistical data which shows that even with fluctuations in application 

numbers, Harvard’s admissions quotas have remained stable. Moreover, SFFA argues that the 

University’s “one-pagers,” which provide “statistics of the present representation of various racial 

groups as compared to the prior year,” show Harvard’s quota for Asian Americans.7 This argument 

is important insofar as the Bakke decision established that using racial quotas in college admissions 

decisions violates the Equal Protection Clause. Although this landmark case eradicated racial 

quotas in higher education admissions, race is still considered as one of many factors during the 

admissions process under the auspices that it promotes the creation of a diverse student body. 

SFFA’s third argument states that Harvard does not consider race for the purpose of 

achieving critical mass, but rather, that it considers race as more than just a “plus factor.”8 This 

assertion is premised on the precedent established in Fisher II that allows universities to determine 

their preferences on diversity if critical mass has already been achieved. Examining Harvard’s 

diversity policy, SFFA contends that Harvard’s policy fails to attain educational diversity since 

Harvard’s policies are not focused on attaining critical mass, thus proving that race-conscious 

admissions “could be used in perpetuity even though there may be some point in time where the 

                                                             
7 Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action - Note.” 
Southern California Law Review, January 1, 2019. 
8 Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action - Note.” 
Southern California Law Review, January 1, 2019. Critical mass is defined as “adequate representation of minority 
students so that the . . . educational benefits that can be derived from diversity can actually happen.” See Fisher v. 
University of Texas at Austin (Fisher II), 579 U.S. ___ (2016). 



 
 

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‘use of racial preferences will no longer be necessary to further the interest in diversity.”9 Under 

this premise, SFFA asserts that race is more of a “plus factor” that can either help or hinder an 

applicant’s admittance, thus violating the Fourteenth Amendment.  

Harvard University’s Counter-Arguments 

Attempting to undermine the veracity of SFFA’s claims, Harvard presents a compelling 

argument as to why its admissions policies give all applicants, especially Asian Americans, a fair 

chance in earning admittance. In response to SFFA’s first argument, Harvard assert that it has 

“expanded the concept of diversity to include students from disadvantaged economic, racial and 

ethnic groups,” as stated in Justice Powell’s Bakke concurrence.10 In this way, Harvard presents 

itself as using admissions policies that threat all applicants as individuals.  

Harvard further contends that SFFA’s reference to the 1920s racial quota against Jewish 

Americans is not an indication of discriminatory intent against Asian Americans and does not 

suggest that Harvard is instituting these policies now. Moreover, Harvard cites Justice Powell’s 

Bakke opinion that “colleges and universities have a right to academic freedom protected by the 

First Amendment, which includes a right to select their students.”11 Harvard then utilizes this 

notion in acknowledging its reaffirmance in the 2016 Fisher II case, ultimately arguing that it was 

simply exercising the right to determine admittance based on the University’s definition of 

diversity.12 As stated in Harvard’s Fisher II amicus brief,  “individualized admissions programs 

                                                             
9 Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action - Note.” 
Southern California Law Review, January 1, 2019. 
10 Oppenheimer, David B. 2018. "ARTICLE: ARCHIBALD COX AND THE DIVERSITY JUSTIFICATION FOR 
AFFIRMATIVE ACTION." Virginia Journal of Social Policy & the Law, 25, 158. 
11 Oppenheimer, David B. 2018. "ARTICLE: ARCHIBALD COX AND THE DIVERSITY JUSTIFICATION FOR 
AFFIRMATIVE ACTION." Virginia Journal of Social Policy & the Law, 25, 158.  
12 Fisher v. University of Texas at Austin (Fisher II), 579 U.S. ___ (2016) 
 



 
 

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like Harvard’s … considers each applicant as a whole person,” preventing Asian Americans from 

“being grouped into one monolithic ‘Asian category’ that blurs the different realities that various 

ethnic subgroups face.”13 Based on the rulings from these cases, Harvard asserts that it has the 

right to choose the makeup of its student body through a fair admissions process. 

Regarding SFFA’s second argument of “racial balancing,” Harvard argues that it maintains 

a diverse learning environment that admissions policy pioneers have diligently worked to 

achieve.14 Although critical mass is an immeasurable number, the concept requires some ideal 

balance constituted through a number of factors. Because of the educational benefits of diversity, 

one of these factors is race. In having a proper balance of races within the university, not all 

qualified applicants can be accepted equitably, which is not a mirror of racial balancing but instead 

part of any admissions process. Most importantly, Harvard focuses on creating a diverse 

environment through a fair and competitive admissions process like any other elite university. 

SFFA’s claims about Harvard’s intentional “racial balancing” fails to consider the perspective of 

other minority groups as well as the need for a diverse learning environment that constitutes all 

backgrounds, races, and ethnicities. As upheld in Smith v. University of Washington Law School 

(9th Cir., 2004), admissions programs that recognize “different cultures, backgrounds, and 

languages” of applicants whose families or who themselves originated from the Philippines, Viet 

Nam, Cambodia, Taiwan, or the People’s Republic of China would bring different contours to the 

educational environment. In applying Smith, Harvard argues that its admissions program fosters 

these values of diversity and inclusivity.  

                                                             
13 Brief for United States District Court District of Massachusetts as Amicus Curiae Brief...In Opposition To 
Plaintiff’s Motion For Summary Judgment, Students for Fair Admissions v. Harvard 1:14-cv-14176-DJC  (D. 
Mass). pg. 8. 
14 Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action - Note.” 
Southern California Law Review, January 1, 2019. 



 
 

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Lastly, Harvard replies to SFFA’s arguments that it fails to consider race for the goal of 

achieving critical mass. In Fisher II, the Supreme Court mandated that a university must reevaluate 

its critical mass status every five years, leading Harvard to create the “Smith Committee” which 

focuses on affirmative action policies. Consequently, Harvard claims that its holistic admissions 

process allows all students to be given a fair chance, thus demonstrating that race is not put on a 

pedestal for any applicant but instead merely serves as another contributing factor. Harvard 

maintains that it does not discriminate or base its rigorous admissions process on an applicant’s 

background and even promotes “the belief that diversity adds an essential ingredient to the 

educational process.”15 Harvard’s convictions, the University argues, are affirmed with the Grutter 

decision which states that “student body diversity promotes learning outcomes,” and “better 

prepares students for an increasingly diverse workforce and society …” Harvard also claims that 

“there is substantial diversity within the Asian American community” since the term is all 

encompassing of a geographically-disparate population.16 Harvard correctly acknowledges that it 

faces the difficult task of making admission decisions since diversity is a broad term with many 

complexities.  

Personal Assessment 

In considering the evidence presented to the District Court, it is clear that Harvard’s 

admissions policies do provide all applicants a fair chance no matter their race, background, or 

socioeconomic status. With respect to SFFA’s claims, Harvard enjoys First Amendment rights to 

freely choose who has the privilege of joining its incoming student body. As one of the oldest and 

                                                             
15 Oppenheimer, David B. 2018. "ARTICLE: ARCHIBALD COX AND THE DIVERSITY JUSTIFICATION FOR 
AFFIRMATIVE ACTION." Virginia Journal of Social Policy & the Law, 25, 158.  
16 Brief for United States District Court District of Massachusetts as Amicus Curiae Brief...In Opposition To 
Plaintiff’s Motion For Summary Judgment, Students for Fair Admissions v. Harvard 1:14-cv-14176-DJC  (D. 
Mass). pg. 5.  



 
 

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most elite universities in the world, Harvard is intentional and decisive in its admissions decisions, 

but in a non-discriminatory way. SFFA raises valid concerns in its lawsuit but fails to consider the 

importance of Harvard’s interest in student applicants from different backgrounds, especially 

within the Asian-American community.         

Conclusion 

Since the 1987 Bakke litigation brought the topic of diversity in higher education to the 

Supreme Court, various competing interests have attempted to alter the scope of affirmative action 

programs. Despite the fact that the majority of universities today do not openly employ race 

considerations in admissions as open-enrollment institutions, SFFA v. Harvard makes a valuable 

contribution to the history of debates over affirmative action in higher education.  

Although Harvard was victorious in the District and Appellate Courts’ review, there are 

“workable race-neutral alternatives” that can be employed to reduce the possibility of 

discrimination. For example, universities can incentivize applicants requiring more financial aid 

to apply to increase applications from historically-underserved minority groups. As a recent article 

in the University of Michigan Journal of Law Reform has argued, with “more inclusive applicant 

pools, social mobility in America will improve and reduce the size of preferences universities 

use.”17 With this in mind, the potential for all colleges to achieve meaningful diversity and fulfill 

their educational missions may seem improbable, but the remains a need for increasingly race-

neutral alternatives to ensure there is minimal possibility for discrimination.  

 

 
                                                             
17 Sander, Richard, and Danielson, Aaron. 2014. “Thinking Hard About "Race-Neutral" Admissions.” University of 
Michigan Journal of Law Reform 47 (4): 967. 
 



 
 

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Bibliography 
 

Avi-Yonah, Shera S., and McCafferty, Molly. “Asian-American Harvard Applicants Saw Lowest 
Admit Rate of Any Racial Group From 1995 to 2013 | News | The Harvard Crimson.” 
Accessed December 21, 2020. https://www.thecrimson.com/article/2018/10/19/acceptance-
rates-by-race/ 

Brown v. Board of Education, 347 US 483 (1954).  
Brief for United States District Court District of Massachusetts as Amicus Curiae Brief...In 

 Opposition To Plaintiff’s Motion For Summary Judgment, Students for Fair Admissions 
 v. Harvard 1:14-cv-14176-DJC  (D. Mass). https://admissionscase.harvard.edu/files/adm-
 case/files/aaldef_amicus_brief_iso_harvard.pdf.   

Chiu, Cynthia. “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action 
- Note.” Southern California Law Review, January 1, 2019.  

Ellis, Brittany N. “The Harvard Admissions Lawsuit, Explained | News | The Harvard Crimson.” 
Accessed December 21, 2020. https://www.thecrimson.com/article/2016/11/7/harvard-
admissions-lawsuit-explainer/. 

Sander, Richard, and Danielson, Aaron. 2014. “Thinking Hard About "Race-Neutral" 
Admissions.” University of Michigan Journal of Law Reform 47 (4): 967. 

Fisher v. University of Texas (Fisher I), 570 U.S. ___ (2013) 

Fisher v. University of Texas at Austin (Fisher II), 579 U.S. ___ (2016) 
Gratz v. Bollinger, 539 U.S. 244 (2003) 

Grutter v. Bollinger, 539 U.S. 306 (2003) 
Oppenheimer, David B. 2018. "ARTICLE: ARCHIBALD COX AND THE DIVERSITY 

JUSTIFICATION FOR AFFIRMATIVE ACTION." Virginia Journal of Social Policy & 
the Law, 25, 158.  

Regents of the University of California v. Bakke, 438 U.S. 312 (1978) 
Smith v. University of Washington Law School, 392 F.3d 367 (9th Cir. 2004) 

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. 
U.S. Constitution. Amend. XIIII, Sec. 1. 

 

 

 

 

 

 


