The 14th Amendment to the U.S. Constitution, in part, reads as follows: “no state shall make or enforce …nor deny to any person within its jurisdiction the equal protection of the law. “ The equal protection clause of the 14th Amendment prohibits most discrimination on the basis of race and gender, and also alienage and national origin. Colleges and universities receiving federal or state funds must comply with the 14th Amendment . In a 2016 landmark U.S. Supreme Court decision ( Fisher v. University of Texas ), the Court held that the University of Texas’ use of race as a factor in the holistic review was narrowly tailored to serve a compelling state interest (“strict scrutiny” test) of diversity, and therefore constitutional under the 14th Amendment . Previous precedent ( Grutter v. Bollinger ) had established that educational diversity is a compelling interest as long as it is expressed as a concrete and precise goal that is neither a quota of minority students nor an amorphous idea of diversity. As you know from your readings, the primary goal of affirmative action programs is to redress past discrimination. It can also serve the purpose of assuring the make up a college student body that is similar to the community outside the academic institution. It has a further goal of increasing the likelihood of social and economic mobility for those protected classes historically discriminated against. Many states, including California, have banned preferential treatment on the basis of race, sex, color, ethnicity, or national origin in public education including in the admission process. A few years ago, a group of Asian-Americans brought suit against Harvard University (and other prominent colleges) arguing Harvard discriminates against Asia-American applicants. It further argued, Harvard has engaged in illegal racial balancing or quotas and it places too great emphasis on race as a determinative factor in admissions. To buttress these arguments, it cites the following uncontroverted statistics. The average Asian-American applicant needs to score 150 more points on its SAT exam than the average white applicant and 250 more points on its SAT exam than the average African-American and Latino applicant to be considered for admission. That the percentage (around 25%) of Asian-Americans admitted into Harvard has not varied over the past 6 years. (Asian-Americans make up 6% of U.S. population) Historically, as part of Harvard’s subjective review of applicants, Asian-Americans receive the lowest “personal” ratings of all racial or ethnic groups. In part, these personal ratings consist of leadership, communication skills, community involvement, expected contribution to the college campus, etc. ratings that were largely derived from high school teacher recommendations. The plaintiff argues Harvard could ignore race and instead give preference to low-income students (or use zip codes) as a way of increasing the diversity of th.

1. The
14th
Amendment
to the U.S. Constitution, in part, reads as follows: “no state
shall make or enforce …nor deny to any person within its
jurisdiction the
equal protection
of the law. “ The
equal protection clause
of the
14th Amendment
prohibits most discrimination on the basis of race and gender,
and also alienage and national origin. Colleges and universities
receiving federal or state funds must comply with the
14th
Amendment
.
In a 2016 landmark U.S. Supreme Court decision (
Fisher v. University of Texas
), the Court held that the University of Texas’ use of
race
as a factor in the
holistic
review was
narrowly tailored to serve a compelling state interest (“strict
scrutiny” test) of diversity, and therefore constitutional under
the 14th
Amendment
. Previous precedent (

2. Grutter v. Bollinger
) had established that
educational diversity is a compelling interest
as long as it is expressed as a concrete and precise goal that is
neither a quota of minority students nor an amorphous idea of
diversity.
As you know from your readings, the primary goal of
affirmative action
programs is to redress past discrimination. It can also serve the
purpose of assuring the make up a college student body that is
similar to the community outside the academic institution. It has
a further goal of increasing the likelihood of social and
economic mobility for those
protected classes
historically discriminated against. Many states, including
California, have banned preferential treatment on the basis of
race, sex, color, ethnicity, or national origin in public education
including in the admission process.
A few years ago, a group of Asian-Americans brought suit
against Harvard University (and other prominent colleges)
arguing Harvard
discriminates
against Asia-American applicants. It further argued, Harvard
has engaged in illegal racial balancing or quotas and it places
too great emphasis on race as a determinative factor in
admissions.
To buttress these arguments, it cites the following
uncontroverted statistics. The average Asian-American
applicant needs to score 150 more points on its SAT exam than
the average white applicant and 250 more points on its SAT
exam than the average African-American and Latino applicant
to be considered for admission. That the percentage (around
25%) of Asian-Americans admitted into Harvard has not varied

3. over the past 6 years. (Asian-Americans make up 6% of U.S.
population) Historically, as part of Harvard’s subjective review
of applicants, Asian-Americans receive the lowest “personal”
ratings of all racial or ethnic groups. In part, these personal
ratings consist of leadership, communication skills, community
involvement, expected contribution to the college campus, etc.
ratings that were largely derived from high school teacher
recommendations. The plaintiff argues Harvard could ignore
race and instead give preference to low-income students (or use
zip codes) as a way of increasing the diversity of the student
body.
In response to the plaintiff’s discrimination
(intentional and unintentional
) lawsuit, the defendant, Harvard, argues: It considers race,
alongside many other factors (some objective like SAT scores
and GPA and some subjective like personal recommendations)
to help the school achieve its goal of creating a diverse student
body that enriches the education of every student. Further,
Harvard states, every student admitted has something unique to
offer its academic community. Finally, Harvard believes its
admission program has been designed and implemented in a
manner that allows every application to be reviewed in a
holistic manner consistent with the guidelines set forth by the
Supreme Court. Harvard admits it could select a class with
perfect SAT scores and GPA averages, but chooses not to do so.
Around 14% of Harvard’s undergraduate student body are
African-American, and around 12% are Latino.
For this assignment, the class is broken into 3 groups. One
group (plaintiff) will review the facts given plus any other
researched facts and argue Harvard’s admission policy is an
illegal form of affirmative action in violation of the Equal
Protection clause. A second group (defendant) will take the
position that Harvard’s admission policy is not discriminatory,
and, in fact, the policy and practice is a lawful form of

4. affirmative action as authorized by Supreme Court precedent.
This group must identify the ethical, societal, and legal benefits
that ensue from this form of affirmative action in higher
education admissions, whereas the plaintiff is expected to
present counter-arguments. The third group (Court) will serve
as the Supreme Court and after hearing both sides will decide
whether Harvard’s admission policy is consistent with the Equal
Protection clause or not. There is nothing to prevent the 3rd
group from establishing new legal precedent on this issue. The
winning side earns an extra point on the 5 point in-class graded
assignment.