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Supreme Court Seeks Biden Administration’s Views on Harvard Case

June 14, 2021, 1:36 PM

The U.S. Supreme Court asked the Biden administration for its views on a challenge to Harvard College’s use of race as an admissions factor, signaling interest in a case that could roll back affirmative action programs at selective universities across the country.

The justices are debating whether to review a federal appeals court decision that upheld Harvard’s policy as a legitimate way to diversify its student body. Challengers say Harvard violated federal civil rights law by intentionally discriminating against Asian-American applicants.

Race-conscious admissions are common at selective universities, though nine states, including California and Florida, have laws banning the practice at public universities.

The request to acting Solicitor General Elizabeth Prelogar means the court won’t say until probably late this year whether it will hear the case, which comes at a volatile time for U.S. race relations. The conservative-controlled court already has likely blockbuster cases over abortion and gun rights on the agenda for the nine-month term that starts in October.

The appeal asks the court to overrule the 2003 decision that reaffirmed the right of universities to consider race as an admissions factor in an effort to diversify their student bodies.

‘Racial Balancing’

That ruling “is wrong in every way -- historically, legally, factually, practically, and morally,” argued Students for Fair Admissions, a group run by longtime preferences foe Edward Blum.

The group contends that Harvard penalizes Asian Americans during the admissions process, assigning them lower ratings on leadership and likability, while automatically giving preferences to Black and Hispanic applicants.

“Harvard’s mistreatment of Asian-American applicants is appalling,” the appeal argued. The group said the Ivy League college was engaging in “racial balancing.”

Harvard called those assertions “simply false,” saying it considers the race only of highly competitive candidates for admission and doesn’t penalize Asian-American applicants.

The college points to a federal trial judge’s findings of “no evidence of any racial animus whatsoever or intentional discrimination,” and no “evidence that any particular admissions decision was negatively affected by Asian American identity.”

Although Justice Sandra Day O’Connor’s majority opinion in the 2003 Grutter decision predicted that racial preferences would no longer be necessary in 25 years, Harvard says they’re still needed to ensure a diverse student body.

“Universities across the country have followed this precedent in structuring their admissions processes,” the college argued. “And the American public has looked to this precedent for assurance that the nation recognizes and values the benefits of diversity and that the path to leadership is open to all.”

The Boston-based 1st U.S. Circuit Court of Appeals upheld the Harvard policy in a 2-0 ruling.

The Harvard case is an unusual candidate to overturn Grutter, which involved the University of Michigan Law School and contentions that its admissions policies violated the Constitution’s equal protection clause. As a private university, Harvard isn’t bound by the clause, and the suit against it centered on the 1964 Civil Rights Act’s Title VI, which applies to universities that receive federal funding.

The Supreme Court said in 1978 that the legal test was the same under Title VI and the equal protection clause. That case, Regents of the University of California v. Bakke, is best known as the ruling that first upheld race-conscious admissions as a means of promoting diversity.

The Students for Fair Admissions appeal doesn’t directly ask the Supreme Court to revisit the Bakke decision.

The case is Students for Fair Admissions v. President and Fellows of Harvard College, 20-1199.

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Ros Krasny

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