Universities and academics offer advice to the Supreme Court
The U.S. Supreme Court on Monday agreed to hear two affirmative action college admissions cases: one involving Harvard University and the other the University of North Carolina at Chapel Hill. .
When the justices consider the cases later this year, they will return to the question they last faced in 2106, whether colleges, public or private, can consider race in admissions. Judges can decide to limit affirmative action, but not ban it, as the plaintiffs in the case are asking.
“Harvard and the University of North Carolina racially gerrymanded their freshman classes in order to meet prescribed racial quotas,” said Edward Blum, president of Students for Fair Admissions, which sued the two universities. “Each college applicant should be judged as a unique individual, not as a representative of any racial or ethnic group. The cornerstone of our nation’s civil rights laws is the principle that the race of a individual should not be used to help or hinder him in his life’s endeavors.We hope the Supreme Court will use these cases to begin restoring the color-blind legal covenant that unites Americans of all races and ethnicities.
Lawrence S. Bacow, president of Harvard University, said the Supreme Court’s decision to reconsider the two cases “jeopardizes 40 years of legal precedent granting colleges and universities the freedom and flexibility to create communities.” of diverse campuses.
“Considering race as just one factor in admissions decisions produces a more diverse student body that strengthens the learning environment for all…Harvard does not discriminate; our practices are consistent with Supreme Court jurisprudence; there is no compelling and credible evidence to justify a different outcome,” he said.
Beth Keith, associate vice chancellor for university communications at Chapel Hill, said university administrators “are eager” to defend the university’s admissions process. “As the trial court found, our process is consistent with long-standing Supreme Court precedent and allows for a deliberate and thoughtful assessment of each student.”
A more conservative court
The decision to hear the cases represents a chance for opponents of affirmative action to overturn not only the Harvard and UNC decisions, but many others that have upheld the use of affirmative action since that the Supreme Court ruled in the Bakke case in 1978. The decision comes at a time when the composition of the Supreme Court differs significantly from the last time it upheld the use of affirmative action in admissions to the university in 2016 in a case involving the University of Texas at Austin.
That 2016 decision was 4-3 due to the death of Justice Antonin Scalia, an opponent of affirmative action, and the recusal of Justice Elena Kagan, who worked the case as solicitor general before join the Supreme Court. The three justices who were in the minority in that case — Chief Justice John Roberts, Justice Samuel Alito Jr. and Justice Clarence Thomas — remain on the court, and they were joined by three conservative justices.
Peter McDonough, vice president and general counsel for the American Council on Education, said he had the most hope, among conservative justices, for Chief Justice Roberts.
“I’m confident the chief justice is following precedent,” McDonough said.
With the court deciding that issue in 2016, McDonough doubts Chief Justice Roberts would support a full reversal of affirmative action. As for the other judges, he said, “there was never a reason to throw in the towel.” ACE is committed to fighting—along with Harvard and UNC—to preserve diversity in higher education.
Michael Olivas, professor emeritus of law at the University of Houston, an expert in higher education law and Inside Higher Education opinion contributor, said of the Supreme Court taking up the case: ‘This is not a good development, even though the issue has been litigated and affirmative action upheld for over 40 years. The cause is right, but the SCOTUS spirit is weak.
Olivas, against conventional wisdom at the time, predicted that affirmative action would survive the 2016 case.
Shirley J. Wilcher, executive director of the American Association for Access, Equity, and Diversity, quoted the late Justice Harry Blackmun in the Bakke decision: “To move beyond racism, we must first consider race. There is no other way.”
There is strong support among college leaders for Harvard and UNC’s position in the case. But there are many groups operating outside academia that support the plaintiffs in the case.
“It is time for the Supreme Court of the United States to intervene to protect our constitutional rights,” said Mike Zhao, president of the Asian American Coalition for Education. “Race-based admission is systemic racial discrimination against Asian Americans and should be banned altogether.”
The Harvard case
The Harvard case rulings — in 2019 by Judge Allison Burroughs and in 2020 by the United States Court of Appeals for the First Circuit — came in a hotly-watched case brought by a longtime critic of the affirmative action on behalf of a group of Asian Americans. applicants.
“For the purposes of this case, at least at this time, ensuring diversity at Harvard rests, in part, on racially conscious admissions,” Burroughs wrote in his conclusion. “Harvard’s admissions program passes the constitutional muster in that it meets the requirements of rigorous scrutiny. Students who are admitted to Harvard and choose to attend will live and learn surrounded by all kinds of people, with all kinds of experiences, beliefs, and talents. They will have the opportunity to know and understand each other beyond race, as whole individuals with unique stories and experiences.
“It is this, at Harvard and elsewhere, that will bring us, one day, to the point where we will see that race is a fact, but not the determining fact and not the fact that tells us what is important, but we don’t “We’re not there yet. Until we are, race-conscious admissions programs that survive rigorous scrutiny will hold an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that promotes learning, enhances scholarship, and encourages mutual respect and understanding.
An appeals court agreed and said, “The question before us is whether Harvard’s limited use of race in its admissions process in order to achieve diversity during the period in question conforms to the requirements of Supreme Court precedent. There was no error. »
Students for Fair Admissions in February asked the Supreme Court to hear the case. The brief asked the court to reverse its 2003 decision in Grutter v. Bollinger, which confirmed the University of Michigan Law School’s use of affirmative action in admissions.
“Although Grutter praised the ‘educational benefits’ of broader student body diversity, his assumption that a university can predict, based solely on race, the ‘opinions’ or ‘experience’ of a candidate[s]’is little more than racial stereotyping,’ the group said in its court petition.
Regarding Harvard, the Students for Fair Admissions brief said: “At Harvard, race is not a ‘plus’ that is always ‘beneficial’; that’s a minus for Asian Americans. At Harvard, race is not “a factor of a factor of a factor”; it is an anvil on the scale that dominates the whole process. At Harvard, race is not a “temporary” evil to be repealed as soon as possible; it’s a key aspect of the identity that Harvard will use until a court orders it to stop.
Harvard filed a brief with the Supreme Court in May, urging him not to take the case.
“The Students’ Petition for Fair Admissions recycles the claims rejected by both courts and offers a completely distorted presentation of the case,” the brief reads. “The SFFA is trying to circumvent the findings of the lower courts by presenting its own version of the case and urging this court to conclude on its own that Harvard pays excessive attention to race and intentionally disadvantages Asian American applicants. But the SFFA’s unreliable representation of the facts fatally compromises its examination record.
Harvard’s admissions policies are, of course, in some ways unusual in American higher education. The university receives many, many more applications than it can admit, even though most applicants could do the job at Harvard. But the case will likely affect all of higher education, even colleges that aren’t competitive in admissions. Many colleges award a portion of their aid based on race or ethnicity or offer summer programs for young minority talent. These programs could face more scrutiny than they have if the Supreme Court rules against Harvard.
The Supreme Court was originally expected to decide whether to hear the case in June, but the court asked the US Solicitor General to intervene. She did so last week, supporting Harvard and discouraging the Supreme Court from taking up the case.
The UNC enclosure is a late addition.
The University of North Carolina at Chapel Hill requested the United States Supreme Court not to consider an appeal of a lower court ruling that UNC’s affirmative action program is legal.
UNC won the case when Judge Loretta C. Biggs found that “at trial, the UNC defendants produced substantial, credible, and largely uncontested evidence that he made a deliberate decision to prosecute the educational benefits that flow from the diversity of the student body; offered a principled and reasoned explanation for this decision; and that the benefits the university is seeking are sufficiently measurable to permit judicial review.
Normally, the plaintiffs in the case, Students for Fair Admissions, would appeal to the United States Court of Appeals for the Fourth Circuit. But the SFFA said that, given the similarities to the Harvard case, the Supreme Court should combine the two cases.