The Conservative-dominated Supreme Court on Monday agreed to consider reviewing race in college admissions, adding another high-profile case to the term in which abortion, guns, religion and COVID-19 are already high on the agenda.
The court said it will hear claims that Harvard University, a private institution, and the University of North Carolina, a public school, discriminate against Asian applicants. A decision against schools could spell the end of affirmative action in college admissions.
The debate is expected to take place in the fall.
The lower courts dismissed the complaints, citing more than 40 years of high court rulings that allow colleges and universities to consider race in admission decisions. But colleges and universities should do it in a highly specialized way to encourage diversity.
The court’s most recent ruling came in 2016 in a 4–3 decision upholding the University of Texas admissions program against a protest filed by a white woman. But the composition of the court has since changed to include three conservative judges appointed by then-President Donald Trump.
Two members of this four-judge majority have retired from the court: Judge Ruth Bader Ginsburg died in 2020, and Judge Anthony Kennedy retired in 2018.
The three dissenters in the case, Chief Justice John Roberts and Judges Clarence Thomas and Samuel Alito, remain in court. Roberts, who had a moderating influence on some issues, was a staunch advocate for limiting the use of race in public programming, once writing, “It’s a dirty business to racially divide us.”
The Court has already heard arguments in cases that could expand gun and religious rights, as well as abolish abortion rights, in a direct challenge to the 1973 Roe v. Wade decision.
Last week, justice weighed in on President Joe Biden’s vaccine policy for the first time, repealing a rule requiring a vaccine or testing at large facilities and allowing most of the country’s healthcare workers to be vaccinated.
The affirmative action case is likely to be heard in the spring. Both lawsuits were filed by Students for Fair Enrollment in Virginia, run by Edward Blum. He worked for many years to rid college applicants of racial considerations, and the new composition of the court breathed new life into his project.
The group is calling on the court to reverse the 2003 Grütter v. Bollinger ruling that upheld the University of Michigan law school admissions program.
The Biden administration urged judges to stay away from the issue, writing in the Harvard case that the objections “cannot justify this extraordinary step” to overturn the 2003 ruling.
The Supreme Court has reviewed college admissions several times in over 40 years. The current controversy dates back to his first major affirmative action case in 1978, when Judge Lewis Powell laid out the rationale for the need to account for race, even though the court prohibited the use of racial quotas in admissions.
In Regents of the University of California v. Bakke, Powell approvingly called Harvard “a prime example” of a college that “records race in achieving the educational diversity valued by the First Amendment.”
Twenty-five years later, Judge Sandra Day O’Connor also cited Harvard’s plan, in her opinion, in the Michigan Law School case.
The Harvard program is now under fire from opponents of affirmative action on a racial basis.
Students for Fair Entry claim that Harvard imposes “racial punishment” on Asian American applicants, systematically giving them lower scores in some categories than other applicants and giving “mass preference” to black and Hispanic applicants.
Harvard strongly denies discrimination against Asian American applicants and says its consideration of race is limited, indicating that the lower courts agree with the university.
In 2020, a federal appeals court in Boston ruled that Harvard has limited consideration of racial issues in line with Supreme Court precedents.
Harvard freshmen are about a quarter Asian American, 16% black and 13% Hispanic, the Harvard website says. “If Harvard refuses admission based on race, the representation of African Americans and Hispanics will be reduced by almost half,” the school told the court, urging not to interfere in the case.
The Trump administration supported the Bloom v. Harvard case and filed its own discrimination lawsuit against Asian Americans and white people at Yale. The Biden administration dropped the Yale lawsuit.
In October, North Carolina’s flagship state university won a case in federal district court. U.S. District Judge Loretta Biggs ruled that the school’s program was designed to produce a diverse student body and demonstrated the benefits of doing so.
The court accepted the North Carolina case for consideration, although it has not yet been heard by a federal appeals court. Bloom filed an appeal with the Supreme Court in the hope that it would be merged with the Harvard case so that judges could rule on public and private colleges at the same time.