Listen live: Supreme Court challenges affirmative action

Listen live: Supreme Court challenges affirmative action

— Washington On Monday, when the Supreme Court convenes to hear arguments in a pair of cases involving Harvard University and the University of North Carolina, four of the nine justices will be confronted with an issue they considered only six years ago.

In the years since the Supreme Court last considered the legality of universities using race as a factor in their admissions programs — in a dispute involving the University of Texas at Austin (Justice Elena Kagan recused herself) — the court’s composition has changed significantly with the appointment of three justices by former President Donald Trump.

This shift to the right has considerably increased the stakes for the survival of affirmative action, with legal experts anticipating that the Supreme Court’s six-member conservative majority will rule race-conscious admissions policies to be unconstitutional.

Jonathan Feingold, a law professor at Boston University who researches affirmative action, stated, “I would be utterly stunned if the Supreme Court would not prohibit affirmative action in higher education in one form or another.” “The only significant difference between 2016 and now, when the Supreme Court upheld the constitutionality of exactly what UNC and Harvard do, is that you lost a number of justices who were in the majority in 2016.”

The legal battles over the admissions programs of the University of North Carolina, the nation’s oldest public university, and Harvard, the nation’s oldest private institution, are the culmination of conservative activist Edward Blum’s decades-long campaign to eliminate the use of racial preferences in American society.

While he lost his 2016 case on behalf of Abigail Fisher, the White woman who challenged race-based admissions at the University of Texas, Blum is about to declare triumph with the suits brought by his organization, Students for Fair Admissions.

Chief Justice John Roberts, Justices Clarence Thomas and Samuel Alito, who dissented in the Fisher decision, remain on the court today, and their conservative bloc was boosted by the appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Kavanaugh replaced Justice Anthony Kennedy, who wrote the judgment upholding the University of Texas’s race-conscious admissions policy, and Barrett replaced the late Justice Ruth Bader Ginsburg, who was in the majority for six years.

Due to her participation on Harvard’s Board of Overseers, Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court, will only engage in arguments in the case concerning the University of North Carolina.

Feingold stated of Blum’s Students for Fair Admissions, “It was an attempt to take another bite out of the affirmative action apple after losing in Fisher.” The strategy was “we keep losing when White litigants are involved, therefore we must now make Asian Americans the face of our imaginary affirmative action victim.”

Edward Blum, the opponent of affirmative action who filed the lawsuit challenging Harvard University’s consideration of race in student admissions, poses for a portrait on October 20, 2022, before the Supreme Court. The Washington Post’s Shuran Huang, via Getty Images
A “paper” organization for “grievances” litigation.

Students for Fair Admissions filed lawsuits against the admissions programs at Harvard and the University of North Carolina on the same day in November 2014, arguing that Harvard’s race-conscious admissions policies violated Title VI of the Civil Rights Act and that UNC’s admissions process violated the 14th Amendment.

In both cases, the group, which was founded by Blum in 2014 and is believed to have more than 20,000 members, is requesting that the Supreme Court overrule its 19-year-old ruling in Grutter v. Bollinger and bar colleges and universities from using race as an admissions consideration.

In the Harvard controversy, the group asserts that the prestigious institution discriminates against Asian-American candidates throughout the admissions process by assigning them lower scores than applicants of other races and limiting the number of Asian-Americans admitted.

Harvard, on the other hand, rejects the accusation of intentional discrimination and maintains that it undertakes a holistic examination of its applicants, with race being one of several characteristics it considers in its quest of student body diversity, in accordance with Supreme Court precedent.

In 2019, a federal district judge in Massachusetts sided with Harvard, stating that the school’s admissions program does not discriminate against Asian-Americans and that its standards accord to the Supreme Court’s prior affirmative action rulings. The 1st Circuit Court of Appeals affirmed the trial court’s ruling that Harvard’s race-conscious admissions policies do not violate Title VI.

In February 2021, Students for Fair Admissions filed an appeal with the Supreme Court. The group stated in a court filing that the 2003 Grutter decision “has fostered harmful consequences, including anti-Asian stereotyping, race-obsessed campuses, and decreases in intellectual diversity, among others.”

Alongside the Harvard controversy, Students for Fair Admissions filed a second lawsuit against the University of North Carolina’s affirmative action program.

In its 2014 complaint, the group said that the admissions process at North Carolina’s flagship university violates the law because it considers race as a criterion and disregards race-neutral alternatives to achieving diversity among its student body. Students for Fair Admissions claims that the 14th Amendment prohibits public universities from using race in admissions decisions.

A federal district court ruled in favor of the University of North Carolina, determining that race is one of many factors considered in the school’s holistic admissions process, and that the university considers race-neutral alternatives, such as expanding financial aid programs or recruitment and outreach, in good faith.

In November, Students for Fair Admissions petitioned the Supreme Court to hear its case, bypassing the U.S. Court of Appeals for the 4th Circuit before it could provide a decision.

In January, the Supreme Court announced that it will hear both affirmative action cases involving the nation’s oldest private and public colleges.

The Biden administration supports the schools in both cases, arguing that in addition to higher education institutions, including the service academies, the federal government and the U.S. military have come to rely on Supreme Court decisions recognizing that educational benefits of diversity justify limited consideration of race in admissions.

Solicitor General Elizabeth Prelogar told the court that the United States has “long recognized that the educational benefits of diversity are critical 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 preparedness depend on a pipeline of highly qualified and racially diverse officers who have been educated in varied environments to equip them to lead increasingly diverse forces,” she wrote.

Meanwhile, Blum’s participation and the circumstances surrounding the formation of Students for Fair Admissions have not gone unnoticed. Harvard and the University of North Carolina argued before their respective trial courts that the group had the legal standing to suit, but the courts ruled in favor of Students for Fair Admissions and permitted the cases to continue.

Nonetheless, state representatives representing the University of North Carolina told the Supreme Court that Students for Fair Admissions was a “paper entity established to battle its founder’s general grievances” when the action against the school was launched.

Material and metaphorical consequences

Georgetown, the Massachusetts Institute of Technology, and Brown University, along with major U.S. corporations and civil rights organizations, support Harvard and the University of North Carolina in the controversy over race-conscious admissions policy.

In an amicus brief, the president and chancellors of the University of California opposed Students for Fair Admissions’ suggested race-neutral approaches to admissions choices, claiming that adopting race-blind admissions undermines attempts to achieve the benefits of diversity.

They stated that the University of California has “decades of experience with race-neutral procedures” because California voters in 1996 adopted a ballot initiative prohibiting the use of race in college admissions. In the state’s university system, the proportion of students from underrepresented minority groups has “dramatically decreased” during the past 25 years.

Several additional states, including Florida, Michigan, and Arizona, have prohibited race-based affirmative action at public universities, as has California.

Harvard also cautioned in its brief that the representation of Black and Hispanic students would fall “substantially” if affirmative action in admissions is prohibited. According to court documents, if the Supreme Court adopted race-neutral alternatives recommended by Students for Fair Admissions, the number of African-American students accepted would decline by roughly 33 percent.

Harvard stated that institutions of all sizes have grown to rely on the Supreme Court’s affirmative action rulings to shape their own admissions policies. More than 41% of universities and 60% of prestigious institutions incorporate race into their curricula, according to the school.

In the meantime, more than a dozen red states, conservative legal organizations, and a number of Republican senators and politicians have put their support behind Blum’s organization.

Feingold stated that a Supreme Court judgment forbidding universities from using race as a consideration in admissions would have both “material” and “symbolic” effects.

“Among your admissions levers, if you are no longer permitted to account for race, but leave everything else the same, you should anticipate a dramatic reduction in the presence of Black, Latino, and some Asian-American students, not because they don’t deserve to be there, but because the institution is now simply privileging metrics that reward racial advantage, not talent and potential,” he said of the material consequences.

Feingold stated, “This will have an especially negative impact on ‘elite’ or extremely selective institutions, because practically everyone who is refused is deserving of admission.”

On the symbolic level, he stated that if the Supreme Court rules that race-conscious admissions policies are unconstitutional, it would mean that “everything was fair and square until affirmative action came along, and affirmative action is the thing that’s somehow corrupting a process that’s actually just rewarding the brightest students.”

“This is the somewhat prevailing, but hotly contested narrative that speaks to the larger argument we are currently having in America,” he said.


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