OPINION: This article contains commentary which may reflect the author's opinion
It was announced Monday that the conservative-dominated Supreme Court would hear a case challenging the practice of affirmative action, which factors race into college admissions.
This court has announced that they are going to act on lawsuits claiming that Harvard University, a private institution, and the University of North Carolina, a state college, discriminate against Asian American applicants.
There is a possibility that affirmative action will be phased out in college admissions if the schools are found to be at fault in the case.
In addition to the major cases on abortion, guns, religion, and COVID-19, which are already on the Supreme Court’s docket, affirmative action continues to be one of the most politically controversial cases since the court’s formation.
High court rulings over the past 40 years allowing colleges and universities to consider race in admissions decisions led lower courts to reject the challenges. However, they must tailor their initiatives to promote diversity in narrowly tailored ways.
Breaking. Supreme Court grants certification on the Harvard/UNC cases this morn, alleging anti-Asian discrimination and systemic racism, consolidating both cases. This is good news for everyone who opposes racism + bigotry. This is good for our high school battles. @PacificLegal
— Asra Q. Nomani 🐻 (@AsraNomani) January 24, 2022
In 2016, the court ruled 4-3 in support of the University of Texas admissions program in the face of a challenge made by a white woman.
Since that time, the court has changed due to appointments made by then-President Donald Trump, including three conservative justices.
Justice Ruth Bader Ginsburg died in 2020, and Justice Anthony Kennedy retired in 2018. Both were members of that four-justice majority on the court.
Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito remain on the court as dissenters in the case.
Roberts, who plays a moderating role on some issues, has been a steadfast supporter of restricting the use of race in public programs, once writing, ‘It is a sordid business, this divvying us up by race.’
The court has already heard arguments in cases that could expand gun rights and religious freedom, as well as overturn the 1973 Roe v. Wade decision.
For the first time this month, the Supreme Court weighed in on President Joe Biden’s vaccine policies, halting a rule that would require vaccines at businesses with more than 100 employees while allowing vaccines for most of the nation’s health care workers.
It is likely that the affirmative action case will be argued this fall.
Both lawsuits were filed by Students for Fair Admissions, an organization run by Edward Blum in Virginia. Having worked for years to eliminate racial discrimination from college admissions, the new court lineup gives his work new life.
The group wants the court to overturn its 2003 decision in Grutter v. Bollinger, which upheld the admissions policy for the University of Michigan’s law school.
In the Harvard case, the Biden administration urged the justices not to take up the matter, arguing that the challenges ‘cannot justify that extraordinary step’ in overturning the 2003 ruling.
Lawrence Bacow, Harvard’s president, asserted that his institution does not discriminate against applicants and vowed to continue to defend the admissions policy.
‘Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all,’ a statement by Bacow read.
Blum expressed the hope that the high court would order an end to taking race into account when making college admissions decisions.
‘Harvard and the University of North Carolina have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas,’ Blum proclaimed in a statement.
College admissions have been reviewed by the Supreme Court several times over the past 40 years. The case is reminiscent of its first big affirmative action case in 1978, when Justice Lewis Powell outlined the rationale for taking race into account while still prohibiting racial quotas for admissions.
According to Powell, in the Regents of the University of California v. Bakke, Harvard is a prime example of a college taking ‘race into account in achieving the educational diversity valued by the First Amendment.’
Likewise, twenty-five years later, the United States Supreme Court’s Sandra Day O’Connor invoked the Harvard plan in her opinion in the Michigan school case
Affirmative action opponents are now taking aim at the Harvard program.
Harvard is allegedly punishing Asian American applicants by systematically scoring them lower in certain categories than other applicants while rewarding Black and Hispanic students with ‘massive preferences’. Students for Fair Admissions claims Harvard imposes a ‘racial penalty’ on Asian American applicants.
In its denial of discrimination, Harvard asserts that it only considers race in a limited manner, citing lower courts that concurred with it.
The federal appeals court in Boston ruled in 2020 that Harvard had looked at race in a limited way, following Supreme Court precedent.
Harvard reports that its freshman class is made up of roughly 25% Asian Americans, 16% Blacks, and 13% Hispanics.
‘If Harvard were to abandon race-conscious admissions, African-American and Hispanic representation would decline by nearly half,’ Harvard argued to the court in asking it not to intervene.
Blum’s lawsuit against Harvard was backed by the Trump administration and it filed its own lawsuit alleging discrimination against Asian Americans and whites at Yale University. However, the Yale lawsuit was dropped by the Biden administration.
A federal district court ruled in favor of North Carolina’s flagship public university in October. According to U.S. District Judge Loretta Biggs, the school’s educational program had demonstrated its value by producing a diverse body of students on campus.
Biggs stated in her decision that the ‘holistic’ admissions process at UNC did not discriminate against Asian Americans and white students.
Leaving race out of the equation, Biggs said, ‘misses important context to include obscuring racial barriers and obstacles that have been faced, overcome and are yet to be overcome.’
Despite not having been heard by a federal appeals court, the Supreme Court accepted the North Carolina case for review. Blum filed an appeal in the Supreme Court in the hope that it would be consolidated with the Harvard case so that the court could rule on both public and private colleges simultaneously.