Affirmative action returns to the Supreme Court with a fresh look

Washington — When the Supreme Court convenes on Monday to hear arguments in a pair of cases involving Harvard University and the University of North Carolina, four of the nine justices will face an issue they weighed just six years ago.

But in the years since the High Court considered the legitimacy of universities as a factor in their admissions programs—in a dispute involving the University of Texas at Austin (Justice Elena Kagan distanced herself)—the structure of the court was clearly defined. With the addition of three judges appointed by former President Donald Trump.

That right march has raised the stakes significantly for the future of affirmative action, with legal experts hoping the Supreme Court’s six-member conservative majority will be strengthened to find race-conscious admissions policies outside the constitutional limits. .

“If the Supreme Court doesn’t end affirmative action in higher education, I will be absolutely shocked,” said Jonathan Feingold, a Boston University law professor who studies affirmative action. “The only meaningful change between 2016, when the Supreme Court upheld the constitutionality of the UNC and Harvard, and now is that you lost many of the judges who were in the majority at the time.”

The legal battle over the admissions programs of Harvard, the nation’s oldest public university, the University of North Carolina, and Harvard, the oldest private institution, is the culmination of a decades-long effort by conservative activist Edward Blum to end the use of racial preferences. American life.

While she lost her 2016 fight brought on by Abigail Fisher, the white woman challenging race-conscious admissions to the University of Texas, Blum is now on the verge of declaring victory with cases brought by the group Students for Fair Admissions of which he is the founder.

Three judges who dissented in Fisher’s case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain in court to this day, and their conservative bloc was strengthened by the addition of Justices Neil Gorsuch, Brett Kavanaugh and Amy Connie Barrett.

Kavanaugh replaced Justice Anthony Kennedy, who decided to legitimize the University of Texas’ race-conscious admissions program, and Barrett replaced the late Justice Ruth Bader Ginsburg, who had been in the majority six years earlier.

Justice Ketanji Brown Jackson, the first black woman to serve on the High Court, would participate in a debate involving the University of North Carolina only because of her membership of Harvard’s board of overseers.

“It was a vehicle to try and take another bite at the positive-action apple after I lost at Fisher,” Feingold said of Blum’s Students for Fair Admissions. “The gamble was ‘when we have white plaintiffs we keep losing, so we now need to make Asian Americans victims of our imagined affirmative action’.”

Edward Blum at the United States Supreme Court in Washington, DC
WASHINGTON, DC – OCTOBER 20: Edward Blum, the affirmative action opponent behind the lawsuit challenging Harvard University’s idea of ​​race in student admissions, for a portrait at the United States Supreme Court on October 20, 2022 in Washington, DC standing.

WASHINGTON, DC – OCTOBER 20: Edward Blum, the affirmative action opponent behind a lawsuit challenging Harvard University’s idea of ​​race in student admissions, poses for a portrait at the United States Supreme Court in Washington, DC.

A “paper” organization for filing “complaints”

A legal battle targeting admissions programs at Harvard and the University of North Carolina was filed on the same day in November 2014 by Students for Fair Admissions, arguing that Harvard’s race-conscious admissions policies violated the Civil Rights Act and the University of the North’s. Title VI was violated. Carolina’s admissions process followed the 14th Amendment.

In both disputes, the group, created by Blum in 2014 and with more than 20,000 members, is asking the Supreme Court to overturn its 19-year-old ruling in Grater v. Bollinger and stop using institutions of higher education as races. . a factor in admission.

In the Harvard controversy, the group claims that the elite school discriminates against Asian-American applicants during the admissions process, assigns them a lower rating than other races, and limits the number of Asian-Americans.

Harvard, however, rejects the claim of intentional discrimination, arguing that it conducts a holistic review of its applicants as one of several factors that is consistent with the Supreme Court’s precedent in exploring student-body diversity.

A federal district court in Massachusetts sided with Harvard in 2019, finding the school’s admissions program does not penalize Asian-Americans and its policies follow the high court’s previous affirmative action decisions. The US Court of Appeals for the 1st Circuit upheld the district court’s decision, ruling that Harvard’s race-conscious admissions procedures do not violate Title VI.

The students appealed to the Supreme Court in February 2021 for fair admission. In a court filing, the group said the 2003 Gutter decision “produced negative consequences: anti-Asian stereotypes, race-obsessed complexes, a decline in ideological diversity, and more.”

Alongside the Harvard controversy, Students for Fair Admission was pursuing its second court battle targeting affirmative action at the University of North Carolina.

The group alleged in its 2014 lawsuit that the admissions process at North Carolina’s premier university is illegal because it considers race as a factor and ignores available race-neutral options for achieving diversity among its student body. Is. Students for Fair Admissions argue that the 14th Amendment prohibits the use of race in admissions by public universities.

A federal district court ruled in favor of the University of North Carolina, finding that race is a factor in many of the factors evaluated in the school’s overall admissions process, and the school engages in good faith belief of race-neutral choices, for example. Extending financial support for programs or recruitment and outreach.

Students for Fair Admissions asked the Supreme Court to hear their case in November, bypassing the US Court of Appeals for the Fourth Circuit, before it could rule.

high Court announced In January, it will hear both cases involving affirmative action in the country’s oldest private and public universities.

The Biden administration is supportive of schools in both cases, arguing that in addition to higher education institutions, including service academies, other institutions such as the federal government and the US military are beginning to rely on Supreme Court decisions, believing that educational benefits Diversity justifies a limited consideration of caste in admission.

The US, Solicitor General Elizabeth Preloger told the court, “has long concluded that the educational benefits of diversity are essential to our nation’s security and other vital national interests.”

“The United States Armed Forces have long recognized that a nation’s military strength and preparedness depend on a pipeline of officers who are both highly qualified and racially diverse – and who have been educated in the diverse environment that enables them to rapidly Let us prepare you to lead diverse forces.” wrote.

Meanwhile, the circumstances surrounding Blum’s involvement and the creation of fair admissions for students went unnoticed. Harvard and the University of North Carolina both argued before their respective trial courts that the group did not have the legal status to sue, but the courts found Students for Fair Admission and allowed the cases to proceed.

Nevertheless, state officials representing the University of North Carolina told the Supreme Court that when the case was filed against the school, Students for Fair Admission was a “paper organization designed to prosecute the generalized grievances of its founder.” Was established.”

“Material” and “Symbolic” Effects

Elite colleges, including Georgetown, the Massachusetts Institute of Technology and Brown University, are supporting Harvard and the University of North Carolina in the controversy over race-conscious admissions policies, and they are linked to major US companies and civil rights groups.

In a friend-of-court brief from the president and chancellor of the University of California, officials proposed a race-neutral approach to admissions decisions for Fair Admissions to Students, arguing for the adoption of race-blind admissions. Benefits of diversity.

The University of California, he said, has “decades-long experience with race-neutral approaches” since California voters approved a ballot referendum in 1996 banning race-conscious measures in college admissions. In the more than 25 years since then, the proportion of students from underrepresented minority groups “fell dramatically” in the state’s university system.

Like California, several other states have banned race-based affirmative action at public universities, such as Florida, Michigan and Arizona.

Harvard also warned in its brief that if affirmative action in admissions is outlawed, the representation of black and Hispanic students “would be significantly reduced.” In fact, if the Supreme Court adopted the race-neutral options proposed for fair admissions by students, the number of African-American students would drop by about 33%, according to court filings.

Harvard also argued that schools large and small have come to rely on the Supreme Court’s affirmative action cases in shaping their own admissions systems: more than 41% of universities, and 60% of select schools, have some degree in their programs. Let’s consider race, the school said.

Meanwhile, more than a dozen red states, conservative legal groups and a group of GOP senators and lawmakers have voiced their support behind Blum’s group.

Feingold said the Supreme Court’s decision to bar universities from considering race as a factor in their admissions methods would have both “material” and “symbolic” implications.

“In your admissions lever, if you are no longer allowed to account for race, but you leave everything else the same, you should expect to see a dramatic reduction in attendance of Black, and Latino, and some Asian-American students “Not because they don’t deserve to be there, but because the institution is now only privileged metrics that reward racial advantage, not talent and ability,” he said of the material consequences.

Feingold continued: “This is going to have a particularly damaging effect on ‘elite’ or highly rejected institutions, in which almost everyone who is rejected deserves to be there.”

Meanwhile, on the symbolic side, he said that if the Supreme Court thinks race-conscious admissions policies are illegal, what it is saying is that “everything was fair and square until affirmative action came, and affirmative action, that’s it.” Something that is corrupting in some way, a process that is really only rewarding the best and brightest.”

“It’s a somewhat influential, but highly controversial narrative that speaks to the broader debate we’re having in America right now,” he said.

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