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
The appeal asks the court to overrule the 2003 decision that
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.”
“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.
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