Justices to hear challenge to race in college admissions

  • Comments
  • Print

The conservative-dominated Supreme Court on Monday agreed to hear a challenge to the consideration of race in college admissions, adding affirmative action to major cases on abortion, guns, religion and COVID-19 already on the agenda.

The court said it will take up lawsuits claiming that Harvard University, a private institution, and the University of North Carolina, a state school, discriminate against Asian American applicants. A decision against the schools could mean the end of affirmative action in college admissions.

Lower courts rejected the challenges, citing more than 40 years of high court rulings that allow colleges and universities to consider race in admissions decisions. But the colleges and universities must do so in a narrowly tailored way to promote diversity.

The court’s most recent pronouncement was in 2016, in a 4-3 decision upholding the admissions program at the University of Texas against a challenge brought by a white woman. But the composition of the court has changed since then, with the addition of three conservative justices who were appointed by then-President Donald Trump.

Two members of that four-justice majority are gone from the court: Justice Ruth Bader Ginsburg died in 2020, and Justice Anthony Kennedy retired in 2018.

The three dissenters in the case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain on the court. Roberts, a moderating influence on some issues, has been a steadfast vote to limit the use of race in public programs, once writing, “It is a sordid business, this divvying us up by race.”

The court already has heard arguments in cases that could expand gun rights and religious rights and also roll back abortion rights in a direct challenge to the Roe v. Wade ruling from 1973.

Earlier this month, the justices weighed in for the first time on President Joe Biden’s vaccine policies, halting a rule requiring a vaccine or testing at large businesses while allowing a vaccine mandate for most of the nation’s health care workers.

The affirmative action case probably will be argued in the fall. Both suits were filed by Students for Fair Admissions, a Virginia-based group run by Edward Blum. He has worked for years to rid college admissions of racial considerations, and the court’s new lineup breathed new life into his project.

The group is calling on the court to overturn its 2003 ruling in Grutter v. Bollinger, which upheld the University of Michigan’s law school admissions program.

The Biden administration had urged the justices to stay away from the issue, writing in the Harvard case that the challenges “cannot justify that extraordinary step” of overruling the 2003 decision.

Harvard President Lawrence Bacow said the Ivy League institution does not discriminate and vowed to continue defending its admissions plan. “Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all,” Bacow said in a statement.

Blum voiced hope that the high court will order an end to taking account of race in college admissions. “Harvard and the University of North Carolina have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas,” Blum said in a statement.

The Supreme Court has weighed in on college admissions several times over more than 40 years. The current dispute harks back to its first big affirmative action case in 1978, when Justice Lewis Powell set out the rationale for taking account of race even as the court barred 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 college that takes “race into account in achieving the educational diversity valued by the First Amendment.”

Twenty-five years later, Justice Sandra Day O’Connor likewise invoked the Harvard plan in her opinion in the Michigan law school case.

Now the Harvard program is under fire from opponents of race-based affirmative action.

Students for Fair Admissions claims that Harvard imposes a “racial penalty” on Asian American applicants by systematically scoring them lower in some categories than other applicants and awarding “massive preferences” to Black and Hispanic applicants.

Harvard flatly denies that it discriminates against Asian American applicants and says its consideration of race is limited, pointing out that lower courts agreed with the university.

In 2020, the federal appeals court in Boston ruled that Harvard looked at race in a limited way in line with Supreme Court precedents.

Harvard’s freshman class is roughly one-quarter Asian American, 16% Black and 13% Hispanic, Harvard says on its website. “If Harvard were to abandon race-conscious admissions, African-American and Hispanic representation would decline by nearly half,” the school told the court in urging it to stay out of the case.

Groups representing Asian-American, Black, Hispanic, Native American and white Harvard students and alumni voiced fear to the appeals court about what would result if Harvard lost.

“If forced to abandon race-conscious admissions, Harvard would become a markedly less diverse institution due to persistent barriers to equal K-12 educational opportunities and discriminatory standardized tests,” the groups wrote in an appellate brief.

The Trump administration had backed Blum’s case against Harvard and filed its own lawsuit alleging discrimination against Asian American and white people at Yale University. The Biden administration dropped the Yale suit.

North Carolina’s flagship public university prevailed in a federal district court in October. U.S. District Judge Loretta Biggs ruled that the school’s program was intended to produce a diverse student body and had shown the benefits of doing so.

The court accepted the North Carolina case for review even though it has not been heard by a federal appeals court. Blum filed a Supreme Court appeal with the hope that it would be bundled with the Harvard case so that the justices could rule on public and private colleges at the same time.

Please enable JavaScript to view this content.

Story Continues Below

Editor's note: You can comment on IBJ stories by signing in to your IBJ account. If you have not registered, please sign up for a free account now. Please note our updated comment policy that will govern how comments are moderated.

12 thoughts on “Justices to hear challenge to race in college admissions

    1. Wesley, how old were you when you decided that minorities were so inferior that they couldn’t get by without the help of Uncle Sam?

    2. Lauren, as a minority, I’ve never felt minorities are inferior. There are plenty of white people who feel that way. Affirmative action is the least that the US Government can do to help minorities after the centuries of oppression minorities faced from racist people and lawmakers in this country. Of course, I’m sure you think racism no longer exists or affects people in any way.

    3. I appreciate you putting words into my mouth, after I did the same to you. I expect as much and deserve as much.

      As for the “centuries of oppression”, you can’t right the wrongs of the past by wronging new rights. All you get is a vicious cycle of vengeance. Not a single person can legitimately claim to be oppressed by something that happened before this or her birth. They don’t need social justice; they need a clinical psychologist.

      Thankfully, some of us don’t have the childlike naivete to think that “racism no longer exists”. But we also don’t think racism will ever stop existing. Racism is as inevitable as greed, envy, and lust. It is a human failing and will always be with us. When we think we’ve eliminated it, we’ve merely changed the semantics under which it operates…as is proven by the last 60 years of civil rights history. Racism by the 1960s definition is fundamentally extinguished. But, because one political party needs to drive a racial wedge to gain credence and political capital, they just change the definition and move the goalposts.

      Wesley, in 2020, the white people who feel minorities are inferior are the ones who think they can’t get by in life and, by virtue of their melanin, are consigned to a state of virtual serfdom despite abundant evidence of minority success. These white people, mostly urban affluent progressive, want to “help” much more because it makes them feel good…and, most importantly, makes them LOOK good. But it is predicated on a notion that the minorities can’t make it on their own. In short, the neo-liberal goal of helping through “kind” programs like affirmative action is just a modern-day equivalent of “White Man’s Burden”. Which is why we see continued multi-generational discontent from the “helped” races, who receive an tacit message of, “you cannot make it on your own”.

    4. “ Not a single person can legitimately claim to be oppressed by something that happened before this or her birth. ”

      So the inverse is also true, no one has ever been advantaged by something that happened before their birth?

    5. Correct–unless you have the bank account to show for it, the cultural movements of the past didn’t privilege/disadvantage anyone. And even then, an heir can choose to squander or buttress that wealth. Simone Biles and Mike Lindell both got where they are through their own initiative, while no amount of oppression or privilege has trickled down benefit to the citizens of the Mississippi Delta (mostly black) or eastern Kentucky coal country (mostly white)–equally poor. The tendency to ascribe people as hierarchical positions in a social pecking order based on a few sociological characteristics, rather than seeing them as individuals with circumstances largely consequent of their own free will, only brings about…more social pecking orders and a caste-based system. The opposite of what Tocqueville saw and so admired in America.

      The great Hoosier author Booth Tarkington, in his signature work “The Magnificent Ambersons” , chronicles a character whose family fortunes soar during his childhood and youth then plummet through a combination of economic misfortune and poor decision making from a gilded-era family who makes imprudent investment decisions. The young protagonist who thought he could rest on family laurels instead has to make a rough living himself, since he has nothing. The Vanderbilts and Astors (and Gates and Zuckerbergs) are the rare exception of landed gentry; most people at some point have to pull their weight to stay ahead.

      Incidentally, the Vanderbilts and Astors tend to be the ones supporting these programs, which largely pit African Americans against working class whites/Asians, while the Rockefellers still hold their legacy admission status. It easy for affluent progressives to wave a banner for “oppressed” minorities when they can push short end of the stick onto another demographic group–namely first-generation immigrant Asians, who get punished despite hard work because of equality-of-outcome based quotas. All while reinforcing the notion (the DELUSION) that blacks and Hispanics need these same quotas to get ahead. What a way to leave people either resentful (the Asians and non-legacy whites) or demoralized and humiliated (the black/Hispanic beneficiaries).

    6. “Unless you have the bank account to show for it”

      I’ll take that as a yes to my question. Thanks for making my point for me, though it was a nice effort to quickly yada yada your way past that.

      Some people are born on third base. Some people think they hit a triple.

  1. Um, would appear to me in this case that minorities (Asian-Americans) have decided they need Uncle Sam to step in and force them to be admitted to Harvard.

    This case is just another example of the severe rightward shift of the Trumpublican Party …

    1. It’ll be interesting to watch Asians (many of whom are second generation and whose parents came here with nothing, but rose to middle class through entrepreneurship) who refuse to “check their privilege”. Many have no doubt begun to grow weary of being lumped in with “whiteness” by race-baiting white academics and progressives. I wonder if we’ll get to see if they lurch away from the political movement that rejects these divisive and unhelpful social remedies…by joining the trumptards. Given their shift in voting patterns between ’16 and ’20, it’s already happening.

    2. BTW, Uncle Sam’s intervention is keeping them out. If Harvard applied race-blind admissions based on merit, the school would be 65-70% Asian, not even counting international applications.

    3. Nope …. Harvard is a private university. Their polices have twice been approved by court cases.

      What’s changed is that the Court is now filled with extremist Republican judges. Credit to the Federalist Society for their efforts on that front, and Mitch McConnell’s court-packing efforts. They’ve played the long game well to make up for their status as a permanent minority party in America.

      Terrible for American democracy, but that’s of no consequence to them.