WASHINGTON – The Supreme Court announced Monday it will decide whether the use of race in the admissions process at Harvard University and the University of North Carolina violates civil rights law and the Constitution, reviving a controversial legal debate over affirmative action that has been years in the making.
The decision to hear the two cases puts the contentious issue of whether universities may consider race when accepting students before the high court for the first time since 2016. Harvard acknowledges considering race in its admissions process but says it does so as one of several factors – an approach that is consistent with the current legal standard.
By accepting the blockbuster case, the justices are adding another polarizing debate to a docket already full of culture war issues. Much of the court's current term has been defined by abortion fights in Texas and Mississippi, gun regulations in New York and COVID-19 related battles, including the decision this month to block the Biden administration's vaccine-or-testing requirements on large employers.
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The high court did not say when it will consider the affirmative action suits, but given the number of cases already queued up for argument this year, there's a good chance the justices won't take the matter up until its next term, which begins in October.
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"The Supreme Court decision to review the unanimous decisions of the lower federal courts puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities," Harvard University President Lawrence Bacow said. "Harvard will continue to defend vigorously its admissions practices."
Universities such as Harvard have relied on past Supreme Court decisions that allow them to consider race as one factor in their admissions process. The high court has ruled that schools have an interest in promoting a diverse student body.
Beth Keith, a spokeswoman for UNC-Chapel Hill, said that the university's process is "consistent with long-standing Supreme Court precedent and allows for an evaluation of each student in a deliberate and thoughtful way."
The lawsuits were filed by an anti-affirmative action group called Students for Fair Admissions, the brainchild of conservative legal strategist Edward Blum. The group charged that Harvard University discriminates against Asian American students in its admissions to boost Black and Hispanic enrollment.
That same group filed a companion case at the high court in November, this time against the University of North Carolina, a public university. The Harvard case alleges violation of a federal law that bars discrimination on the basis of race in programs that receive federal funding. In the North Carolina case, the group alleges the school's policies violate the 14th Amendment's guarantee of equal treatment under the law.
“It is our hope that the justices will end the use of race as an admissions factor at Harvard, UNC and all colleges and universities," Blum said. "The cornerstone of our nation's civil rights laws is the principle that an individual’s race should not be used to help or harm them in their life’s endeavors."
Affirmative action policies in university admissions have been a target of conservatives for decades but many such policies have been upheld by a series of Supreme Court decisions dating to 1978. In 2016, the court upheld the use of racial preferences in admissions at the University of Texas at Austin, asserting "considerable deference is owed to a university" that wants to promote student body diversity.
But that 4-3 decision was written by Associate Justice Anthony Kennedy, the court's onetime swing vote, who retired in 2018. He was succeeded by the more conservative Associate Justice Brett Kavanaugh. Since then, Associate Justice Amy Coney Barrett, another conservative, has also joined the court, giving opponents of affirmative action renewed hope for a reversal.
The lawyers for Students for Fair Admissions argued Asian American applicants at Harvard were victimized by getting lower "personal ratings" than other racial or ethnic minorities. Those ratings are intended to help create a diverse campus by focusing on characteristics other than academics, extracurricular activities, sports and legacy connections.
Under established precedent, to achieve the educational benefits that flow from student-body diversity, universities may consider race as one factor among many in a full, individualized evaluation of each applicant’s background, experiences and potential contributions to campus life. The U.S. Court of Appeals for the 1st Circuit in Boston ruled in 2020 that Harvard permissibly uses race as one of several factors.
A federal district court ruled for the University of North Carolina in that separate case in October. Blum's group filed an appeal with both the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia, which has not yet ruled, and at the Supreme Court.
The court hit pause on the Harvard case in June, inviting the Biden administration to submit a brief even though the federal government is not a party to the lawsuit. As expected, the administration argued against hearing the case in paperwork filed in early December and urged the court to abide by its past affirmative action decisions.
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