The Supreme Court hears cases challenging affirmative action

Washington – As the Supreme Court convenes Monday to hear arguments in a pair of cases involving Harvard University and the University of North Carolina, four of the nine justices are facing an issue they considered just six years ago.

But in the years since the Supreme Court last considered the legality of universities considering race as a factor in their admissions programs — in a case involving the University of Texas at Austin (Justice Elena Kagan recused herself) — the composition of the court has noticeably changed , with the addition of three judges appointed by former President Donald Trump.

That march to the right has significantly raised the stakes for the future of affirmative action, and legal experts expect the Supreme Court’s strengthened six-member conservative majority to recognize the racially-conscious admissions policy as outside of constitutional bounds.

“I would be absolutely shocked if the Supreme Court didn’t eliminate affirmative action in higher education in one way or another,” said Jonathan Feingold, a Boston University law professor who studies affirmative action. “The only significant change between 2016, when the Supreme Court upheld the constitutionality of exactly what UNC and Harvard are doing, and now is that you’ve lost a few justices who were then in the majority.”

The legal battle over the admissions programs at the University of North Carolina, the nation’s oldest public university, and Harvard, the oldest private institution, is the culmination of decades of efforts by conservative activist Edward Blum to end racial bias in American life.

While he lost a 2016 battle on behalf of Abigail Fisher, a white woman challenging admissions at the University of Texas based on race, Blum is now on the verge of declaring victory in cases brought by the group Students for Fair Admissions, among of which he is the founder.

The three justices who dissented in Fisher’s case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain on the court today, and their conservative bloc was bolstered by Justices Neil Gorsuch, Brett Kavanagh and Amy Coney Barrett.

Kavanagh was succeeded by Justice Anthony Kennedy, who Tuesday ruling that the University of Texas’ racially biased admissions program was legal, and Barrett replaced the late Justice Ruth Bader Ginsburg, who had been in the majority six years earlier.

Justice Ketanji Brown Jackson, the first black woman to serve on the Supreme Court, will only sit on arguments in a case involving the University of North Carolina because of her membership on Harvard’s Board of Overseers.

“It was a way to try to take another bite out of the positive apple after losing to Fischer,” Feingold said of Blum’s Students for a Fair Reception. “The gambit was, ‘We keep losing when we have white plaintiffs, so now we need to make Asian Americans the face of our supposed affirmative action victim.’

Edward Blum, the affirmative action opponent behind the lawsuit over Harvard University’s admissions race, speaks for a portrait at the Supreme Court on Oct. 20, 2022.

Shuran Huang for The Washington Post via Getty Images

“Paper” organization for handling “grievances”

The lawsuits targeting Harvard and the University of North Carolina’s admissions programs were filed on the same day in November 2014 by Students for Fair Admissions, which argued that Harvard’s race-based admissions policy violated Title VI of the Civil Rights Act and the University of North Carolina university. Carolina’s admissions process violated the 14th Amendment.

In both disputes, a group created by Blum in 2014 and said to have more than 20,000 members is asking the Supreme Court to overturn its 19-year-old Gruter v. Bollinger decision and bar higher education institutions from using race as an admissions factor.

In the controversy surrounding Harvard, the group claims the elite school discriminates against Asian-American applicants in admissions, giving them lower rankings than other races and limiting the number of Asian-Americans admitted.

Harvard, however, rejects the allegation of intentional discrimination and says it conducts a holistic review of its applicants, with race being one of many factors it considers in its pursuit of student body diversity, according to Supreme Court precedent.

In 2019, a federal district court in Massachusetts sided with Harvard, finding that the school’s admissions program did not penalize Asian Americans and that its policy was consistent with past high court rulings on affirmative action. The U.S. Court of Appeals for the 1st Circuit upheld a district court decision, ruling that Harvard’s race-based admissions procedures did not violate Title VI.

Students for fair admission appealed to the Supreme Court in February 2021. In a court filing, the group said Grater’s decision in 2003 “created negative consequences: anti-Asian stereotypes, race-obsessed campuses, reduced ideological diversity, and more.”

At the same time as the Harvard dispute, Students for Fair Admission launched their second legal battle aimed at affirmative action at the University of North Carolina.

The group argued in its 2014 lawsuit that North Carolina’s flagship university’s admissions process is illegal because it treats race as a factor and ignores race-neutral alternatives available to achieve student diversity. Students for Fair Admissions argues that the 14th Amendment prohibits the use of racial profiling in admissions to public universities.

A federal district court has ruled in favor of the University of North Carolina, finding that race is one of many factors evaluated in the school’s holistic admissions process, and that the school takes good faith race-neutral alternativessuch as expanding financial aid programs or recruitment and outreach.

Students for Fair Admission asked the Supreme Court to hear his case in November, bypassing the 4th U.S. Circuit Court of Appeals before it can rule.

High court announced in January, he will hear both affirmative action cases at the nation’s oldest private and public universities.

The Biden administration supports the schools in both cases and argues that in addition to institutions of higher education, including service academies, other organizations such as the federal government and the U.S. military have come to rely on Supreme Court decisions that recognize the educational benefits of diversity. limited consideration of race at admission.

US Solicitor General Elizabeth Prelagar told the court“long ago concluded that the educational benefits of diversity are essential to our nation’s security and other vital national interests.”

“The United States Armed Forces have long recognized that the nation’s military strength and readiness depend on a diverse array of officers who are both highly skilled and racially diverse — and who have been educated in diverse environments that prepare them to lead forces that are increasingly diverse,” she said. wrote.

Meanwhile, Blum’s participation and the circumstances surrounding the creation of “Students for Fair Reception” did not go unnoticed. Both Harvard and the University of North Carolina argued in their trial courts that the group lacked standing to sue, but the courts found the students fair admissions and allowed the case to proceed.

However, state officials representing the University of North Carolina told the Supreme Court that when the case against the school was filed, Students for Fair Admissions was “an organization on paper created to address the general grievances of its founder.”

“Material” and “symbolic” impact

Elite colleges, including Georgetown, MIT and Brown University, are backing Harvard and the University of North Carolina in the dispute over racial admissions policies, and are joining large American companies and civil rights groups.

U friend of the court is short from the president and chancellors of the University of California, officials pushed back from Students for Fair Admissions’ proposed race-neutral approach to admissions decisions, arguing that blind admissions undermines efforts to achieve the benefits of diversity.

The University of California, they say, has “a decade of experience with race-neutral approaches” since California voters in 1996 approved a referendum that banned race-based college admissions. In the more than 25 years since then, the percentage of students from underrepresented minority groups has “dropped dramatically” across the state’s university system.

Like California, several other states have banned race-based affirmative action at public universities, such as Florida, Michigan and Arizona.

Harvard also issued a warning in its own short that if affirmative action in admissions were banned, the representation of black and Hispanic students would “significantly” decrease. In fact, if the Supreme Court accepted the race-neutral alternatives proposed by Students for Fair Admissions, the number of African-American students admitted would drop by nearly 33%, according to court filings.

Harvard also argued that schools large and small in shaping their own admissions systems rely on the Supreme Court’s affirmative action: More than 41% of universities and 60% of selective schools consider race to some degree in their programs, the school said.

Meanwhile, more than a a dozen red statesconservative legal groups and a a group of Republican senators and legislators supported Blum’s group.

A Supreme Court decision barring universities from considering race as a factor in admissions will have both a “material” and “symbolic” impact, Feingold said.

“Among your admissions levers, if you’re no longer allowed to take race into account, but you leave everything else the same, then you should expect a dramatic decline in black, Hispanic, and some Asian-American students, not because they don’t deserve to be there, but because the institution now simply prioritizes metrics that reward racial preference over talent and potential,” he said of the financial implications.

Feingold continued: “It will have a particularly damaging effect on ‘elite’ or highly disadvantaged institutions where almost everyone who is rejected deserves to be there.”

Meanwhile, on a symbolic note, he said that if the Supreme Court finds the racially motivated admissions policy illegal, it means that “everything was fair and square until affirmative action came along, and affirmative action is something that somehow spoils the process , which really just rewards the best and the brightest.”

“It’s a somewhat dominant but very contested narrative that speaks to a broader debate that we’re having in America right now,” he said.

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