WASHINGTON - The Supreme Court announced Monday it will once again consider whether universities may consider the race of applicants when attempting to build diverse student bodies, an ominous development for those who say there is a continuing need for affirmative action in higher education.
The court said it would examine the admissions policies at Harvard and the University of North Carolina, most probably in the term that begins October. Lower courts found both complied with Supreme Court precedents that said race may be used as one factor universities can consider in a wide-ranging evaluation of applicants.
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 violate federal law and the Constitution.
The Grutter decision “abandoned the principle of racial neutrality that [Brown v. Board of Education] vindicated,” wrote lawyers for the group Students for Fair Admissions, which has spearheaded previous efforts to have the court reconsider affirmative action. “Grutter endorsed racial objectives that are amorphous and unmeasurable . . . unsurprisingly then, universities have used Grutter as a license to engage in outright racial balancing.”
The group said 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.”
Both universities told the Supreme Court that, as the extensive examinations in the lower courts showed, they have adhered to the court’s precedents and 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 Joshus Stein, D. “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, whose admission policy 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.
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 Kennedy reiterated previous high-court rulings that diversity justifies some intrusion on the Constitution’s guarantee of equal protection, which generally forbids the government from making decisions based on race.
But Justices Kennedy and Ruth Bader Ginsburg, two members of that majority, are no longer on the court. And three justices nominated by President Donald Trump have proved themselves to be more conservative.
The dissenters in the Texas case remain in place - Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. 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. Those measures enjoy substantial political support. California voters decisively rejected in 2020 a proposal to repeal the state’s affirmative action ban.
Students for Fair Admissions is based in Arlington, Va., and headed by Edward Blum, a longtime critic of race-based affirmative action who brought previous challenges to the high court.
The group filed its suits against Harvard and UNC-Chapel Hill in November 2014, alleging unlawful bias in the admissions practices of the two universities. Both schools denied the allegations.
The Harvard case cast a spotlight on the plaintiff’s allegation that one of the world’s most selective universities was discriminating against Asian Americans while giving a boost to many Hispanic and Black applicants. The suit led to unprecedented exposure of the inner workings of Harvard admissions as the plaintiff obtained internal electronic records on more than 166,000 domestic applicants spanning six admission cycles through 2014-2015.
Harvard’s process, Students for Fair Admissions alleged, was stacked against Asian Americans “based on prejudicial and stereotypical assumptions about their qualifications.” The suit also alleged that the university seeks to engineer the demographics of incoming classes to meet predetermined goals through “racial balancing,” that it gives too much weight to race in making admission decisions, and that it failed to give adequate consideration to race-neutral alternatives.
After a trial in Boston, U.S. District Judge Allison 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 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 Biggs ruled in October that UNC-Chapel Hill’s method of choosing a class was constitutional and not discriminatory. Biggs also emphasized the importance of the issue for students of color.
Black students were not allowed at UNC-Chapel Hill until the 1950s. Last year they accounted for 12% of the entering freshman class. The shares were 21% for Asian or Asian American students and 65% 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-Chapel Hill is one of the more selective public universities in the country. It offered admission to 19% of more than 53,000 who applied to join its freshman class last fall.
For Harvard, admissions is ultracompetitive. Last year it offered seats to 1,968 applicants in a record pool of 57,435 applicants. Thirteen percent of those admitted identified as Latinx, Harvard said, 18% as African American or Black and 27% as Asian American.