WASHINGTON – With abortion and guns already on the agenda, the conservative-dominated US Supreme Court is considering adding a third highly successful issue: whether to ban the consideration of race in college admissions.
Judges could say as early as Monday whether they will hear an appeal alleging that Harvard discriminates against Asian American applicants, in a case that could have nationwide repercussions. The case will not be discussed until the fall or winter.
“It would be a huge problem because of the nature of college admissions across the country and because of the stakes in having this issue before the Supreme Court,” said Gregory Garre, who twice defended the University’s admissions program. of Texas before the judges.
The presence of three people appointed by former President Donald Trump could prompt the court to take the case, even though it has only been five years since its last decision in an affirmative action case in higher education.
In that Texas case, the court reaffirmed in a 4-3 decision that colleges and universities can consider race in admissions decisions. But they must do so in a strictly tailored way to promote diversity, the court said in a decision rejecting a white applicant’s claims of discrimination. Schools also bear the burden of showing why their consideration of race is appropriate.
Two members of that majority of four magistrates have left the court. Judge Ruth Bader Ginsburg died in September. Justice Anthony Kennedy retired in 2018.
The three dissenters in the case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain in court. Roberts, a moderating influence on some issues, has been a firm vote to limit the use of race in public programs, once he wrote: “It’s a sordid business, this dividing us by race.”
The court’s willingness to launch into major abortion and gun rights cases also appears to run counter to the new, more conservative composition of the court because similar appeals have been rejected in the past.
Like the abortion case, the Harvard case lacks a division between appellate courts that often piques the interest of the higher court in a case.
The Supreme Court has weighed in on college admissions multiple times for more than 40 years. The current dispute dates back to its first major affirmative action case in 1978, when Judge Lewis Powell laid out the rationale for taking race into account even as the court outlawed the use of racial quotas in admissions.
In the Regents of the University of California v. Bakke, Powell approvingly cited Harvard as “an illuminating example” of a university that takes “race into account in achieving educational diversity valued by the First Amendment.”
Twenty-five years later, Judge Sandra Day O’Connor also invoked the Harvard plan in her opinion upholding the University of Michigan law school admissions program.
Now it is the Harvard program in the crosshairs of those who oppose affirmative action based on race.
The challenge to Harvard is led by Edward Blum and his Students for Fair Admissions. Blum has worked for years to eliminate college admissions from racial considerations.
The group claims that Harvard imposes a “racial penalty” on Asian American applicants by systematically rating them lower in some categories than other applicants and by giving “mass preferences” to black and Hispanic applicants.
Harvard strongly denies that it discriminates against Asian American applicants and says its consideration of race is limited, noting that the lower courts agreed with the university.
In November, the federal appeals court in Boston ruled that Harvard considered race to a limited extent in line with Supreme Court precedents.
The class that just finished its freshman year is about a quarter Asian-American, 15% Black and 13% Hispanic, Harvard says on its website. “If Harvard abandoned race-conscious admissions, African American and Hispanic representation would be cut by almost half,” the school told the court, urging it to stay out of the case.
The Trump administration backed Blum’s case against Harvard and also filed its own lawsuit alleging discrimination against Asian Americans and whites at Yale.
The Biden administration has already dropped Yale’s lawsuit and will almost certainly side with Harvard on the Supreme Court if the case goes ahead.
The lead attorney on the appeal is William Consovoy, who also represented Trump in his failed attempt to protect his tax returns from the Manhattan district attorney.
When the court upheld the Michigan law school program in Grutter v. Bollinger in 2003, O’Connor took note of the quarter century since Bakke’s decision.
“We hope that 25 years from now, the use of racial preferences will no longer be necessary to promote the interest approved today,” O’Connor wrote.
O’Connor’s timeline established 2028 as a potential end point for racial preferences. A more conservative court than the one in which she served could advance that expiration date by several years.