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Legal Experts Discuss Race-Conscious Admissions and Equal Protection After SFFA v. Harvard at HLS Event

Legal experts discussed the future of race-conscious admissions following the outcome of the lawsuit brought by Students for Fair Admissions against Harvard and the University of North Carolina.
Legal experts discussed the future of race-conscious admissions following the outcome of the lawsuit brought by Students for Fair Admissions against Harvard and the University of North Carolina. By Santiago A. Saldivar
By Michelle N. Amponsah and Emily R. Willrich, Crimson Staff Writers

Legal experts at an event hosted by Harvard Federalist Society on Wednesday said they believe the Supreme Court should rule in favor of Harvard in the lawsuit brought against the University by anti-affirmative action group Students for Fair Admissions.

Nonetheless, panelists Guy-Uriel Charles and Jonathan F. Mitchell, as well as Harvard law professor Jeannie C. Suk Gersen — who moderated the event — agreed that they believe SFFA will prevail.

In October 2022, the Supreme Court heard oral arguments for SFFA v. Harvard, which challenges the use of race-conscious admissions in higher education admissions processes. SFFA first sued Harvard in 2014, alleging their policies discriminate against Asian American applicants.

Mitchell, the former solicitor general of Texas and an attorney at Mitchell Law PLLC, claimed that according to the textualist perspective, the SFFA argument does not have a basis in statute.

“SFFA is relying on a cause of action that is solely a creature of judicial precedent that has no textual support whatsoever,” Mitchell said.

Charles, a Harvard law professor, said the case should be examined through a different framework — a commitment to “the project of equality.”

“For me, the place to begin is to think about how, as a society, we should think about the distribution of resources, recognizing that we live in an unequal society,” Charles said.

He mentioned that an important point in this debate is determining which institutions should make decisions that affect minority groups.

“Some of you and some of us might trust the Court, some might trust Harvard, some might trust the political process, some might trust other types of entities,” he said.

“But we’re going to have to decide who we trust to make those types of decisions, and what are the types of checks and balances, both in law and politics, that enable us to think differently about the types of decisions that we’re making?”

Gersen, who last year filed a successful request for the Massachusetts District Court to unseal SFFA v. Harvard courtroom sidebars, said the case has broader implications for equal protection.

“I think that the underlying question of, what kind of society we want to have, what our commitment to equality is — what does that really look like?” she said.

The panelists also debated which branch of government should control race-conscious admissions policies: Congress or the Supreme Court.

In an interview after the panel, Brecken D. Denler, a first-year student at HLS and a member of the Harvard Federalist Society, said he thought it was “interesting to hear that all panelists agreed that Harvard should prevail in the case for different reasons.”

Denler also said he enjoyed the “broader discussion about legal realism versus legal formalism,” which he considers a “lively discussion between students at the Law School and in the profession generally.”

Alex Trivella, a third-year student at HLS, said the University has a “vested interest” in creating a diverse intellectual environment.

“If everybody in the room looks the same, grew up the same way, and doesn’t have any different experiences that might challenge the views expressed, it actually detracts from the point of a liberal arts education,” Trivella said in an interview after the event.

Many legal experts anticipate that the Supreme Court will end the use of race-conscious admissions policies in a decision expected in late spring or summer.

Correction: March 3, 2023

A previous version of this article incorrectly stated that Jonathan F. Mitchell claimed that according to a textualist perspective, Students for Fair Admissions’ argument does not have legal standing. In fact, Mitchell said that from a textualist perspective, SFFA’s argument lacks a basis in statute.

—Staff writer Michelle N. Amponsah can be reached at Follow her on Twitter @mnamponsah.

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