Harvard College receives millions of dollars in federal taxpayer-financed assistance every year. By accepting federal funding, Harvard subjected itself to Title VI’s stringent restrictions on the use of race. As Harvard undisputedly considers applicants’ race when selecting its incoming freshman class, it bore the burden at trial of proving that its consideration of race in the admissions process is narrowly tailored to a cognizable compelling interest. Yet the unvarnished record shows that Harvard’s use of race is hardly tailored at all.
The trial record established that Harvard actively engages in racial balancing that Supreme Court precedent flatly forbids. Indeed, the racial composition of Harvard’s admitted class is strikingly stable from year to year. That result is no accident. The school considers applicants’ race at virtually every step, from rating applicants to winnowing the field of applicants when attempting to avoid an over- subscribed class. And its inclusion of race in the analysis frequently makes a dispositive difference. The district court found that Harvard’s use of race was “determinative” for “approximately 45% of all admitted African American and Hispanic applicants.” ADD84. Moreover, Harvard meticulously tracks and shapes the racial makeup of its emerging incoming class throughout the process, continuously comparing the new class’s racial composition with that of the previous year. This overt engineering of racial stasis bears no resemblance to the flexible, nonmechanical “plus” factor that the Supreme Court’s cases to date have permitted.