Supreme Court Will Hear Challenge to Affirmative Action at Harvard and UNC

Supreme Court Will Hear Challenge to Affirmative Action at Harvard and UNC

Adam LiptakAnemona Hartocollis

WASHINGTON — The Supreme Court agreed on Monday to decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful, raising serious doubts about the future of affirmative action in higher education.

The court has repeatedly upheld similar programs, most recently in 2016. But the court’s membership has tilted right in recent years, and its new conservative supermajority is almost certain to view the challenged programs with skepticism, imperiling more than 40 years of precedent that said race could be used as one factor among many in evaluating applicants.

“Affirmative action has repeatedly been administered last rites during the last five decades,” said Justin Driver, a law professor at Yale. “But these two cases unmistakably pose the gravest threats yet to affirmative action’s continued vitality.”

The case against Harvard accused it of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness and by effectively creating a ceiling for them in admissions.

Lawyers for Harvard said the challengers had relied on a flawed statistical analysis and denied that the university discriminated against Asian American applicants. More generally, they said race-conscious admissions policies are lawful.

In the North Carolina case, the plaintiffs made a more familiar argument, saying the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.

If the Supreme Court follows its usual practices, it will hear arguments in its next term, which starts in October. A decision is not likely until the spring or summer of 2023.

The cases will test the newly bolstered conservative majority’s commitment to precedent. As in recent cases on abortion, there are reasons to think that the majority will not hesitate to overrule major precedents if it views them to be egregiously wrong.

The possibility of a ruling that would either restrict or prohibit race as a consideration in admissions would reverberate widely across higher education and could fundamentally reshape college admissions in the years to come.

Such a ruling would, all concerned agree, also likely reduce the number of Black and Latino students at nearly every selective college and graduate school, with more Asian American and white students gaining admission instead.

Both of the affirmative action cases were brought by Students for Fair Admissions, a group founded by Edward Blum, a legal entrepreneur who has organized many lawsuits challenging race-conscious admissions policies and voting rights laws, several of which have reached the Supreme Court.

In a statement, Mr. Blum said he welcomed the court’s decision to hear the cases.

“Harvard and the University of North Carolina have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas,” he said. “Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group.”

Harvard and the University of North Carolina said in statements that the decision to hear the cases would jeopardize what has become a fundamental principle of college admissions.

Lawrence S. Bacow, the president of Harvard, said the challenge “puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities.”

Beth Keith, a spokeswoman for the University of North Carolina, said its admissions program “allows for an evaluation of each student in a deliberate and thoughtful way.”

The universities both won in federal trial courts, and the decision in Harvard’s favor was affirmed by a federal appeals court.

The Supreme Court’s decision to hear both cases may have been influenced by the differing legal regimes that apply to the two schools. Harvard, a private entity, must comply with a federal statute that bans race discrimination as a condition of receiving federal money; the University of North Carolina, which is public, must also satisfy the Constitution’s equal protection clause.

Damon Hewitt, the president of the Lawyers’ Committee for Civil Rights Under the Law, which represents students and alumni defending the programs, said they served a vital role.

“Selective universities like Harvard and U.N.C.-Chapel Hill have long struggled to admit students of color, who have over time been excluded for access to elite institutions and are historically marginalized,” Mr. Hewitt said. “Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments and immense talents.”

But Kenneth L. Marcus, who served as assistant secretary for civil rights at the Education Department in the Trump administration, said Harvard’s treatment of Asian students was reminiscent of its efforts to limit Jewish enrollment.

“Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” he said, “so today they often view Asian students as lacking the appropriate character.”

The case has divided Asian Americans.

Jason Xu, the president of the Silicon Valley Chinese Association Foundation, which filed a brief supporting the challengers in the Harvard case, said many Asian Americans believe that their academically high-performing children were passed over because they were of Asian descent.

But another group, Asian Americans Advancing Justice, took the opposite tack, saying in a statement that affirmative action was necessary because “the reality is that race continues to unfairly limit educational opportunities for students of color.” The group added that “cold numerical indicators like grade point averages and standardized test scores capture and magnify these inequalities.”

Brian T. Fitzpatrick, a law professor at Vanderbilt University, said it was time for a course correction.

“In the wake of the Black Lives Matter movement, universities have become obsessed with racial preferences to a degree that I have not seen in my 15 years in academia,” he said. “It seems like nothing is more important than race anymore.”

Understand Affirmative Action and the Supreme Court

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A new challenge. The U.S. Supreme Court has repeatedly upheld race-conscious admissions programs through the decades, but the court’s new conservative supermajority has agreed to hear two cases that put the fate of affirmative action in higher education into question.

Lee C. Bollinger, the president of Columbia University, drew the opposite lesson from the national debate over racial justice. “Broad public awareness of the unrelenting impact of racism demands a recommitment to affirmative action, not its abandonment,” he said in a statement.

Polls have found conflicting levels of support for affirmative action. Most Americans believe that it is important to promote racial and ethnic diversity in the workplace and that there is still racism in American society. Nonetheless, a Pew Research Center survey in 2019 found that 73 percent of Americans said colleges and universities should not consider race or ethnicity when making decisions about student admissions.

And in 2020, California voters refused to overturn a state ban on consideration of race, ethnicity and gender in public higher education and government jobs and contracts.

The decision to revisit affirmative action comes as the credibility of elite university admissions is under assault from other directions. A federal investigation known as Operation Varsity Blues revealed a sweeping scheme to get students admitted to prestigious universities as fake athletic recruits, or by cheating on college entrance exams, in exchange for bribes from wealthy parents. The ringleader was an admissions consultant, and the case did not directly implicate universities.

A lawsuit filed in federal court this month accused 16 of the nation’s leading private universities and colleges of conspiring to reduce the financial aid they award to admitted students through a price-fixing cartel. The accused universities have denied wrongdoing.

In 2016, the Supreme Court upheld an admissions program at the University of Texas at Austin, holding that officials there could continue to consider race as a factor in ensuring a diverse student body. The vote was 4 to 3. (Justice Antonin Scalia had died a few months before, and Justice Elena Kagan was recused.)

Writing for the majority, Justice Anthony M. Kennedy said that courts must give universities substantial but not total leeway in devising their admissions programs.

He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. In an interview not long after the Texas case was decided, Justice Ginsburg said it would endure.

“I don’t expect that we’re going to see another affirmative action case,” Justice Ginsburg said, “at least in education.”

Six years later, only two members of the majority in the Texas case remain on the court. Justice Kennedy retired in 2018 and was replaced by Justice Brett M. Kavanaugh, and Justice Ginsburg died in 2020 and was replaced by Justice Amy Coney Barrett.

After a long blockade of President Barack Obama’s nominee by Senate Republicans, Justice Scalia was replaced by Justice Neil M. Gorsuch. All three of the new justices were appointed by President Donald J. Trump.

The Texas decision essentially reaffirmed Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”

The court is now poised to act well before Justice O’Connor’s deadline.

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