The decision is a blow to anti-affirmative action group Students for Fair Admissions, a nonprofit that aims to eliminate the use of race in college admissions.
The SFFA lawsuit, which was filed in 2014, alleges that Harvard’s admissions officers use a subjective “personal rating” to discriminate against Asian Americans who apply to the school. Using six years of admissions data, the group found that Asian American applicants were given the highest scores in an academic category but received the lowest scores on the personal rating.
The group’s analysis found that Harvard accepted Asian Americans at lower rates than any other racial group, while giving preference to Black and Hispanic students with lower grades. The lawsuit also alleged that Harvard works to keep a consistent racial breakdown among new students, which the organization says amounts to illegal “racial balancing.”
Harvard denies any discrimination and says it considers applicants’ race only in the narrow way approved by the U.S. Supreme Court. In close calls between students, some underrepresented students may get a “tip” in their favor, school officials have said, but students’ race is never counted against them.
After a three-week trial that cast new light on Harvard’s secretive selection process, a federal judge ruled that other factors could explain why Asian Americans are admitted at lower rates than other students. In her 2019 ruling, District Judge Allison D. Burroughs said Harvard’s admissions process is “not perfect” but concluded that there was “no evidence of any racial animus whatsoever.”
A three-judge panel of the appeals court heard arguments in September, but one of the judges, Juan Torruella, died in October before the case was decided. The ruling notes that Torruella heard oral arguments but did not participate in issuing the decision.
The judges wrote in their opinion that given the size of its applicant pool, Harvard does not have the space to admit all applicants who would succeed academically.
"Harvard has determined that academic excellence alone is not sufficient for admission. Rather, Harvard seeks students who are not only academically excellent but also compelling candidates on many dimensions."
While those other dimensions can include "experiences with prejudice or discrimination and how the applicant has overcome this adversity," judges noted that applicants also submit information through the common application unrelated to race, including their standardized test scores, transcripts, extracurricular and athletic activities, awards, parents' and siblings' educational information, parents' occupations and marital status, teacher and guidance counselor recommendations, intended field of study, personal statement, and additional supplemental essays or academic material.
Ultimately, the judges wrote, Asian American identity has a statistically insignificant effect on admissions probability, concluding that Harvard does not place outsized emphasis on race.
“Harvard has demonstrated that it values all types of diversity, not just racial diversity,” the judges said. "Harvard’s use of race in admissions is contextual and it does not consider race exclusively.”
Harvard spokesperson Rachael Dane told FOX Business in a statement that the 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."
"As we have said time and time again, now is not the time to turn back the clock on diversity and opportunity,” Dane added.
SSFA President Edward Blum said in a statement that while he was disappointed, “our hope is not lost.” The ruling paves the way for an appeal to the Supreme Court.
"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," Blum said.
However, the judges argued in their ruling that Harvard’s admissions process aligns with requirements laid out in previous Supreme Court cases.
“The issue before us is whether Harvard’s limited use of race in its admissions process in order to achieve diversity in the period in question is consistent with the requirements of Supreme Court precedent," the judges wrote. "There was no error.”
But the Trump administration has put its support behind the SFFA lawsuit, and while the United States' highest court has upheld the use of race as a factor in college admissions multiple times, legal scholars believe the court's new conservative majority, created by the confirmation of Justices Amy Coney Barrett and Brett Kavanaugh, could potentially place tighter limits around race in admissions or forbid the practice entirely.
Along with the Harvard case, the Virginia-based Students for Fair Admissions is also challenging racial considerations at the University of North Carolina in Chapel Hill and in a separate case at the University of Texas at Austin.
The Associated Press contributed to this report