Supreme Court to hear affirmative action challenge in college admissions

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The conservative-dominated Supreme Court on Monday agreed to hear a challenge to the consideration of race in college admissions, adding affirmative action to major cases on abortion, guns, religion and COVID-19 already on the agenda.

The court said it would file lawsuits alleging that Harvard University, a private institution, and the University of North Carolina, a public school, discriminate against Asian American applicants. A ruling against the schools could mean the end of affirmative action in college admissions.

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Lower courts dismissed the challenges, citing more than 40 years of higher court rulings that allow colleges and universities to consider race in admissions decisions. But colleges and universities must do so in a way that is narrowly tailored to promote diversity.

The court’s most recent decision was in 2016, in a 4-3 decision upholding the University of Texas admissions program against a challenge brought by a white woman. But the composition of the court has changed since then, with the addition of three conservative judges who were appointed by then-President Donald Trump.
Two members of that four-judge majority left the court: Justice Ruth Bader Ginsburg died in 2020 and Justice Anthony Kennedy retired in 2018.

The three dissenters in the case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain on the court. Roberts, a restraining influence on some issues, has been a consistent vote to limit the use of race in public programs, once writing, “It’s a sordid business, it divides us by race.”

The court has already heard arguments in cases that could expand gun rights and religious rights and also overturn abortion rights in a direct challenge to Roe v. Wade from 1973.

Earlier this month, judges weighed in on President Joe Biden’s vaccination policies for the first time, ending a rule requiring a vaccine or testing at major companies while allowing a vaccination mandate for most of the country’s health workers.

The case for affirmative action will likely be debated in the fall. Both lawsuits were filed by Students for Fair Admissions, a Virginia-based group led by Edward Blum. He worked for years to rid college admissions of racial considerations, and the court’s new formation breathed new life into his project.

The group is asking the court to reverse its 2003 decision in Grutter v. Bollinger, who confirmed the University of Michigan Law School Admissions Program.

The Biden administration had urged judges to stay away from the issue, writing in the Harvard case that the challenges “cannot justify this extraordinary step” of reversing the 2003 ruling.

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Harvard President Lawrence Bacow said the Ivy League institution does not discriminate and pledged to continue to defend its admissions plan. “Considering race as one factor among many in admissions decisions produces a more diverse student body that strengthens the learning environment for all,” Bacow said in a statement.

Blum has expressed hope that the High Court will order an end to the consideration of race in university admissions. “Harvard and the University of North Carolina have racially gerrymanded their freshman classes in order to meet prescribed racial quotas,” Blum said in a statement.

The Supreme Court has ruled many times on college admissions for over 40 years. The current dispute dates back to his first major affirmative action case in 1978, when Judge Lewis Powell laid out the reasons for considering race even as the court banned the use of racial quotas in admissions.

In Regents of the University of California v. Bakke, Powell cited Harvard approvingly as “an illuminating example” of a college taking “race into account to achieve the educational diversity valued by the First Amendment.”

Twenty-five years later, Judge Sandra Day O’Connor also invoked the Harvard plan in her view in the Michigan Law School case.

Now, Harvard’s program is under fire from opponents of race-based affirmative action.

Students for Fair Admissions says Harvard imposes a “racial sanction” on Asian American applicants by consistently graduating them in some categories lower than other applicants and giving “massive preferences” to black and Hispanic applicants.

Harvard categorically denies that it discriminates against Asian American applicants and says its consideration of race is limited, pointing out that lower courts agreed with the university.

In 2020, the Boston Federal Court of Appeals ruled that Harvard was looking at race in a limited way, consistent with Supreme Court precedents.

Harvard’s freshman class is made up of about a quarter Asian American, 16% black and 13% Hispanic, Harvard says on its website. “If Harvard were to drop race-conscious admissions, African-American and Hispanic representation would drop by nearly half,” the school told the court, urging it to stay out of the case.

Groups representing Asian-American, Black, Hispanic, Native American and white Harvard students and alumni told the appeals court their fears about what would happen if Harvard lost.

“If forced to abandon race-conscious admissions, Harvard would become a significantly less diverse institution due to persistent barriers to equal opportunity in K-12 education and discriminatory standardized testing. “, wrote the groups in an appeal brief.

The Trump administration had backed Blum’s case against Harvard and filed its own lawsuit alleging discrimination against Asian Americans and whites at Yale University. The Biden administration has ditched the Yale suit.

North Carolina’s flagship public university prevailed in federal district court in October. U.S. District Judge Loretta Biggs ruled that the school’s program aimed to produce a diverse student body and showed the benefits of doing so.

The court accepted the North Carolina case for review even though it was not heard by a federal appeals court. Blum filed an appeal with the Supreme Court in hopes it would tie into the Harvard case so judges could rule on public and private colleges simultaneously.

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