Appeals court rules in favor of Harvard in affirmative action case, paving way for Supreme Court challenge

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A federal appeals court on Thursday agreed with a lower court ruling that Harvard University does not intentionally discriminate against prospective Asian American students.

Two judges from the First Circuit Court of Appeals ruled that the district court was correct in ruling that Harvard’s limited use of race in its admissions process in order to achieve diversity “is consistent with the requirements of Supreme Court precedent.”

"Today’s decision once again finds that Harvard’s admissions policies are consistent with Supreme Court precedent, and lawfully and appropriately pursue Harvard’s efforts to create a diverse campus that promotes learning and encourages mutual respect and understanding in our community," Harvard spokesperson Rachael Dane said. "As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity."

Judge Sandra Lynch, a Bill Clinton appointee, wrote the opinion. She also led most of the questioning during oral arguments in September, pressing for evidence of racial profiling and discrimination, along with Judge Juan Torruella, who was appointed by former President Ronald Reagan, though Torruella did not participate in issuing the ruling.

The background: Students For Fair Admissions’ appeal argued the district court was unable to determine that Harvard treats Asian American applicants fairly. It also put a spotlight on the university’s use of a "personal rating" in admissions decisions, which the group argued rates Asian American applicants lower than their peers and is discriminatory.

The Trump administration also participated in the oral arguments on behalf of SFFA, arguing that Asian American applicants are “unduly burdened by the expansive and pervasive use of race by Harvard.”

What’s next: The administration-backed lawsuit could be the Supreme Court’s next opening to ban affirmative action. Edward Blum, president of Students For Fair Admissions and a longtime anti-affirmative action activist, vowed Thursday to get the high court to take up the case.

“While we are disappointed with the opinion of the First Circuit Court of Appeals, our hope is not lost,” Blum said in a statement. “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.”

While the high court has upheld the use of race as a factor in college admissions multiple times, that could change under the court’s new conservative majority due to the confirmation of justices Amy Coney Barrett and Brett Kavanaugh, who replaced Anthony Kennedy, a key swing vote in the most recent opinion approving the use of race.

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