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  • Writer's pictureLeslie A. Farber

Is Affirmative Action a Form of Racial Discrimination?

Racially diverse college students

On October 8, the United States Department of Justice (DOJ) sued Yale University over charges of racial discrimination against Asian American and white applicants in its admissions process. The suit came almost two months after the DOJ determined that Yale violated civil rights law by using race as a “determinative factor” in its admissions process and the university refused to changed its procedures.

The DOJ also supported Students for Fair Admissions, Inc. (SFFA) in its lawsuit against Harvard University, which argued that Harvard intentionally discriminates against Asian American applicants in its admissions program. A federal judge ruled in Harvard’s favor in late September, but both cases appear to be aimed at undermining affirmative action.

Affirmative action is the practice of considering factors like race and gender to achieve greater diversity in the workplace and in educational institutions. The term was introduced almost sixty years ago, when President John F. Kennedy created the President’s Committee on Equal Employment Opportunity. This committee signaled the Kennedy Administration’s commitment to fairness in employment by ensuring that companies the federal government did business with did not discriminate on the basis of race.

Affirmative action regulations have been expanded over the years, and today many firms and educational institutions have affirmative action or diversity officers whose job is to ensure that racial minorities (and sometimes individuals in other categories) are included in the hiring or admissions pool. Unfortunately, affirmative action has become synonymous over time with the effort to attain a specific number of underrepresented groups in a business or an educational institution by giving applicants from those groups preference over similarly or better qualified individuals.

It is in this context that SFFA alleged that Harvard University discriminates against Asian American applicants in the undergraduate admissions process in violation of Title VI of the Civil Rights Act of 1964, which “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.” SFFA argued that Harvard’s admissions policy is intentionally aimed at limiting the number of Asian Americans who attend the college.

While acknowledging that it considers race as one factor among many, Harvard said its undergraduate admissions process is consistent with applicable law. Federal Judge Allison Burroughs agreed, affirming in her decision that race-based admissions policies are still needed to ensure diversity on campuses. “For purposes of this case, at least for now, ensuring diversity at Harvard relies, in part, on race conscious admissions,” Judge Burroughs wrote.

The victory for Harvard reinforces decades of case law on race-conscious admissions. While Supreme Court interpretations of the legality of affirmative action have varied over the years, the Supreme Court of the United States (SCOTUS) generally has permitted a "limited" use of race or gender-based consideration in the admissions process while clearly indicating that affirmative action should undergo strict judicial scrutiny.

In fact, Harvard’s program has been held up as an example of the proper use of race in admissions since affirmative action had its landmark test at the Supreme Court in the 1978 Regents of the University of California v. Bakke case. In the Bakke case, SCOTUS ruled that the consideration of race in admissions was constitutional, but race could not be the sole factor for the decision.

While the burden lies with the schools to show that their consideration of race is appropriate, these two high-profile cases raise the possibility that affirmative action may have outgrown its usefulness as a tool for ensuring diversity. In her conclusion in the Harvard decision, Judge Burroughs noted there may come a time when “we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet."

If you have questions or concerns about affirmative action practices in your school or business, please contact us at 973-509-8500 x213 or

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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