Monday, January 17, 2022


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Excerpted From: Mike Hoa Nguyen, Douglas H. Lee, Liliana M. Garces, OiYan A. Poon, and Janelle Wong, Mobilizing Social Science Research to Inform Judicial Decision-making: SFFA V. Harvard, 28 Asian American Law Journal 4 (2021) (70 Footnotes) (Full Document)


In the fall of 2019, the District of Massachusetts upheld the legality of Harvard's race-conscious admissions process in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA v. Harvard), finding that the process did not violate equal protection under the Constitution. More specifically, the decision stated that “there is no evidence of any racial animus whatsoever or any intentional discrimination on the part of Harvard beyond its use of a race conscious admissions policy, nor is there evidence that any particular admissions decision was negatively affected by Asian American identity.” Students for Fair Admissions (SFFA) quickly appealed. And on November 12, 2020, the Court of Appeals for the First Circuit issued a decision upholding the legality of Harvard's policy. In its opinion, which established an important foundation for the legal issues potentially moving to the U.S. Supreme Court, the court referenced the amicus brief and research that is the focus of this Article. 


SFFA is an organization created by conservative activist Edward Blum specifically to end affirmative action programs and race-conscious admissions practices. Mr. Blum has a long history of using legal challenges to dismantle policies that seek to advance racial equity. Prior to SFFA v. Harvard, Mr. Blum recruited Ms. Abigail Fisher, a white woman, to serve as his plaintiff in Fisher v. University of Texas at Austin, a case challenging the University of Texas at Austin's race-conscious admissions program. The Supreme Court, after initially remanding the case in Fisher I, upheld the university's admissions policies as constitutional in 2016's Fisher II. Given his loss before the Supreme Court in Fisher II, Mr. Blum changed his strategy and formed SFFA with the explicit purpose of recruiting Asian Americans for his lawsuit against Harvard. Mr. Blum is also pursuing this strategy in a case against the University of North Carolina, Chapel Hill, which is still pending at the district court, and, more recently, another lawsuit against the University of Texas at Austin.

Because amici in support of the plaintiffs in SFFA v. Harvard submitted a large quantity of misinformation and problematic “research” to the courts, it was imperative for us, as social scientists, to challenge the misinformation and to present the appellate court with the extensive body of rigorous research that supports the legality of Harvard's policy. With this important goal in mind, a small group of scholars across the country, with the assistance of our pro-bono attorney, drafted an amicus curiae brief on behalf of 678 social scientists and scholars who have extensively studied education issues relevant to Asian Americans, college access, and race in postsecondary institutions and society. The amicus brief built on a prior collective effort by the social science community in an amicus brief filed by 531 social scientists before the lower court. In our brief for the court of appeals, amici comprised researchers and scholars employed at 253 different institutions and organizations, including more than 241 colleges and universities across the United States. Our work extends across numerous fields and disciplines, including education, Asian American Studies, sociology, anthropology, psychology, public policy, political science, and history. Many amici have been recognized with the highest national honors and awards in their field. Fifteen amici are members of the American Academy of Arts & Sciences, twenty are members of the National Academy of Education, and sixty-one are past or current presidents of national organizations, including the American Educational Research Association, the Association for the Study of Higher Education, and the Association for Asian American Studies.

In this Article, we present a short background and updated developments on the legal and social context of the case, summarize the main arguments in the amicus brief, and discuss critical issues to consider in the future. We also provide a reprint of the amicus brief filed with the court of appeals in full, including the list of 678 signatories. We argue that the amicus brief provides empirical evidence that supports the legality of Harvard's policy and that judicial decisions regarding race-conscious admissions should be informed by this extensive and rigorous body of empirical research.

[. . .]

The amicus brief reprinted here summarizes the extensive and rigorous body of social science research that supports the legality of Harvard's race-conscious admissions process and represents a critical effort, by a broad and robust coalition of social scientists, to have legal decision-making be based on fact. We were pleased that the court of appeals considered the empirical evidence and rejected the erroneous claims that undergird SFFA's arguments, based, in part, on research presented in our amicus brief.

The First Circuit's decision establishes an important foundation as the Supreme Court considers SFFA's petition for certiorari. Although the Supreme Court has used social science research in previous cases to reaffirm the use of race-conscious admissions in higher education (see Justice O'Connor majority opinion in Grutter v. Bollinger), some justices have also relied upon less-than-rigorous analysis to inform their dissents (see Justice Alito's dissent in Fisher II).

We fully expect opponents of race-conscious admissions to aggressively continue their campaign of disinformation to advance their political agenda. To combat this effort, new research agendas must confront and empirically test claims used in these debates. The social science community must continue to address misinformation by presenting rigorous research on affirmative action in legal briefs, op-eds, and other media formats in order to inform legal decision making and to educate the public at large. Doing so will preserve race-conscious admissions for current and future generations.

Mike Hoa Nguyen is Assistant Professor at the University of Denver's Morgridge College of Education and Faculty Affiliate at the Scrivner Institute of Public Policy and the Interdisciplinary Research Institute for the Study of (In)Equality.

Douglas H. Lee is a Ph.D. Student in Higher Education Leadership at Colorado State University.

Liliana M. Garces is Associate Professor of Educational Leadership and Policy at the University of Texas at Austin and Faculty Affiliate at the University of Texas School of Law and the Center for Mexican American Studies.

OiYan A. Poon is a Program Officer at the Spencer Foundation and an Associate Professor Affiliate in the School of Education at Colorado State University.

Janelle Wong is Professor of American Studies and Asian American Studies at the University of Maryland at College Park.

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