Justices defer Harvard case on race in college admissions

WASHINGTON – With abortion and guns already on the agenda, the conservatively dominated Supreme Court is considering adding a third blockbuster theme – whether to ban racial consideration in college admission.

The judges on Monday postponed a decision on whether they will hear an appeal alleging that Harvard is discriminating against Asian American applicants in a case that could have nationwide ramifications. The court asked the Justice Department to consider the case, a process that typically takes several months.

“It would be a big deal because of the nature of college admissions across the country and the risk of having this problem in the Supreme Court,” said Gregory Garre, who twice defended the University of Texas admissions program to judges.

The presence of three former President Donald Trump’s appointees could cause the court to open the case, even though it has only been five years since its last decision on a positive action case in higher education.

In this Texas case, the court in a 4-3 ruling upheld that colleges and universities can consider race in admissions decisions. However, you need to do this closely to promote diversity, the court said in a ruling that rejected a white applicant’s allegations of discrimination. Schools also have the burden of showing why their consideration of race is appropriate.

Two members of this four-judiciary majority have disappeared from the court. Judge Ruth Bader Ginsburg died in September. Judge Anthony Kennedy retired in 2018.

The three dissidents in the case, Chief Justice John Roberts and Judges Clarence Thomas and Samuel Alito, remain in court. Roberts, a moderating influence on some issues, was a steadfast voice in favor of restricting the use of races in public programs when he once wrote, “It is a filthy business to divide us by race.”

The court’s willingness to dive into major abortion and gun rights cases also appears to excite the new, more conservative composition of the court, as similar appeals had been dismissed in the past.

As with the abortion case, the Harvard case lacks a split between the appellate courts that often piques the Supreme Court’s interest in a case.

The Supreme Court has weighed up admission to college several times in more than 40 years. The current dispute dates back to his first major affirmative action case in 1978, when Judge Lewis Powell set out the reasons for race consideration even when the court banned the use of race quotas in admissions.

In the Regents of the University of California v. Bakke approvingly quoted Powell as “a shining example” of a college that “considers race in attaining the educational diversity valued by the First Amendment”.

Twenty-five years later, Judge Sandra Day O’Connor also relied on the Harvard plan, which maintained the University of Michigan law admissions program, in her opinion.

Now it is the Harvard program in the crosshairs of the opponents of racial affirmative action.

The challenge for Harvard is led by Edward Blum and his Students for Fair Admissions. Blum has been working for years to free college admissions from racial considerations.

The group alleges that Harvard imposes a “racial punishment” on Asian American applicants by systematically rating them lower than other applicants in some categories and by assigning “massive preferences” to black and Hispanic applicants.

Harvard flatly denies that it discriminates against Asian American applicants, saying that consideration of race is limited, pointing out that the university’s lower courts have agreed.

In November, the Boston Federal Court of Appeals ruled that Harvard had limited views of the breed in accordance with Supreme Court precedents.

The class, which has just completed its freshman year, is made up of roughly a quarter of Asian-American, 15% Black, and 13% Hispanic, says Harvard on its website. “If Harvard abandoned racial admissions, African American and Hispanic representation would be cut in half,” the school told the court, telling them to stay out of the case.

The Trump administration backed Blum’s lawsuit against Harvard and also filed its own lawsuit alleging discrimination against Asian Americans and whites at Yale.

The Biden administration has already dropped the Yale lawsuit and will almost certainly take Harvard’s side at the Supreme Court as the case progresses.

The lead attorney on the appeal is William Consovoy, who also represented Trump in his unsuccessful attempt to protect his tax returns from the Manhattan District Attorney.

When the court upheld the Michigan law school program in the Grutter v Bollinger case in 2003, O’Connor noted the quarter of a century that had passed since the Bakke ruling.

“We anticipate that 25 years from now, the use of racial preferences will no longer be required to further the interest authorized today,” wrote O’Connor.

O’Connor’s timeline set 2028 as a possible endpoint for racial preferences. A more conservative court than the one she served could bring this expiration date forward several years.

source https://collegeeducationnewsllc.com/justices-defer-harvard-case-on-race-in-college-admissions/