The Supreme Court announced Monday that it will once again look at whether universities may consider the race of applicants when trying to build diverse student bodies, an ominous development for those who say there is a continuing need for affirmative action in higher education.
But the slim Supreme Court majorities that decided Grutter v. Bollinger in 2003 and reaffirmed it in 2016 are gone, replaced by a much more conservative bloc. Challengers say the court should overturn those precedents and rule that considerations of race, which aid underrepresented Black and Hispanic students, violate federal law and the Constitution.
The court — its six-member conservative majority strengthened by President Donald Trump’s three appointments — has now accepted cases that could transform its jurisprudence on some of the most controversial issues of the day: abortion, gun rights and race.
Edward Blum, president of Students for Fair Admissions, the group that spearheaded the affirmative action challenges, said polls show that Americans strongly disapprove of race-conscious admissions.
“In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others,” Blum said in a statement. “Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.”
Blum’s group told the Supreme Court it would be fitting to end the use of racial considerations by overturning policies at “the nation’s oldest private college and … at the nation’s oldest public college.”
Harvard does not discriminate, university president Lawrence S. Bacow said in a statement. He said the court’s acceptance of the cases “puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities.”
“Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all,” he said.
Both universities told the Supreme Court that, as the extensive examinations in the lower courts showed, they have respected federal law and constitutional rights in building their student bodies.
“The University has embraced diversity, in all its forms, as a core feature of its educational mission,” wrote North Carolina Attorney General Josh Stein (D) to the court. “It considers race flexibly as merely one factor among numerous factors in its holistic admissions process. And it has scrupulously studied and adopted workable race-neutral alternatives.”
Harvard, the admission policy of which is subject to review because it receives federal funds, said its process has been held up as a national standard.
“To assemble the strongest first-year class, Harvard looks for students who excel beyond academics and who will bring distinctive experiences, perspectives, talents, and interests to campus,” its filing to the court says. To find the strongest applicants, “40 admissions officers conduct a time-consuming, whole-person review process in which each applicant is evaluated as a unique individual,” the filing says.
The Trump administration had supported Harvard’s challengers in lower courts, but the Biden administration switched that position and told the court it should not accept the challenge.
White House press secretary Jen Psaki said at a briefing Monday that the administration strongly believes “in the benefits of diversity in higher education, and we take very seriously our commitment to advancing equity and equal opportunity for historically underserved populations.”
In a 2016 decision, the court upheld the limited use of race in student admissions by the University of Texas.
The majority opinion written by Justice Anthony M. Kennedy reiterated high-court rulings that diversity justifies some intrusion on the Constitution’s guarantee of equal protection, which generally forbids the government to make decisions based on race.
But Justices Kennedy and Ruth Bader Ginsburg, two members of that majority, are no longer on the court.
The dissenters in the Texas case — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — remain, now joined by the Trump nominees, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
While Roberts often plays a moderating role on the court and is reluctant to overturn the court’s precedents, he has been a steadfast opponent of affirmative action.
The petition filed by challengers in the Harvard case made note of that in the first sentence, quoting an opinion written by Roberts during his first term on the court in 2006: “It is a sordid business, this divvying us up by race.”
The possibility of a ruling that would further limit or even ban the consideration of race in admissions will send tremors through higher education.
For decades, colleges and universities have relied on guidance from the Supreme Court that it is acceptable to take race into account as one factor among many in a holistic review of an application. Their rationale is that racial diversity on campus serves a compelling educational interest. In other words, students learn through encounters with peers who may look different from them.
But there are important caveats. The court has said that colleges must consider whether race-neutral admission practices can achieve their diversity goals. And it has forbidden the use of racial quotas to fill seats in a class.
Separately, some states, including California, Michigan and Florida, have banned the consideration of race in admissions to public universities. Such measures enjoy substantial political support. In 2020, California voters decisively rejected a proposal to repeal the state’s affirmative action ban.
The lawsuit against Harvard highlighted an especially explosive allegation: That the university allowed racism against Asian Americans to skew its review of their applications.
Blum’s group cited data that it said showed a tendency for Harvard to give strong ratings to Asian American applicants for academic performance but penalize them in ratings of personal qualities such as leadership and compassion.
The suit also unearthed an internal Harvard review that suggested Asian Americans would be admitted in greater numbers if academic performance were the only criterion for admission — a study that the plaintiff contended Harvard buried.
The university said the review was incomplete and preliminary. It also denied discriminating against Asian Americans or penalizing them in any way.
After a trial in Boston, U.S. District Judge Allison D. Burroughs rejected those claims in a ruling for Harvard in October 2019. Burroughs called the Harvard process “imperfect” but also “a very fine admissions program that passes constitutional muster.” She found no persuasive evidence of “racial animus or conscious prejudice” against Asian Americans.
The U.S. Court of Appeals for the 1st Circuit upheld the Burroughs ruling in November 2020.
In the North Carolina case, the plaintiff contended that the state’s flagship public university discriminated against White and Asian American students. “UNC uses race mechanically to ensure the admission of the vast majority of underrepresented minorities,” Students for Fair Admission alleged.
After a trial in Winston-Salem, N.C., U.S. District Judge Loretta C. Biggs ruled in October that the school’s method of choosing a class was constitutional and not discriminatory. Biggs also emphasized the importance of the issue for students of color.
The Supreme Court accepted the UNC case before it could be heard by the U.S. Court of Appeals for the 4th Circuit.
Black students were not allowed at UNC at Chapel Hill until the 1950s. Last year, they accounted for 12 percent of the entering freshman class, according to the university. The shares were 21 percent for Asian or Asian American students and 65 percent for White students. (Those numbers include some multiracial overlap.)
“Race is so interwoven in every aspect of the lived experience of minority students,” Biggs wrote. “To ignore it, reduce its importance and measure it only by statistical models as [Students for Fair Admissions] has done, misses important context.”
UNC at Chapel Hill is one of the more selective public universities in the country. It offered admission to 19 percent of more than 53,000 who applied to join its freshman class last fall.
For Harvard, admission is ultracompetitive. Last year the university said it offered seats to 1,968 applicants in a record pool of 57,435 applicants. The university said 13 percent of those admitted identified as Latinx, 18 percent as African American or Black and 27 percent as Asian American.
Eugene Scott contributed to this report.
