The cases center on policies at Harvard University and the University of North Carolina at Chapel Hill that allow admissions officers to consider race as one of many factors in a holistic application review. Many competitive colleges and universities across the country use this race-conscious approach, they seek to increase the enrollment of underrepresented groups such as black or Hispanic students. But public universities in California, Florida and many other states are not allowed to consider race.
A group called Students for Fair Admissions sued Harvard and UNC-Chapel Hill separately in 2014, alleging their policies led to illegal racial discrimination. The plaintiff, who lost in lower courts in 2019 and 2021, is asking the high court to overturn decades of precedent and ban the consideration of race in admissions.
Race-conscious admissions policies face Supreme Court review
The American Council on Education, which represents college and university presidents, led 40 higher education groups in an amicus brief that supported Harvard and UNC-Chapel Hill’s position that the court should allow the status quo to continue.
“A rule prohibiting consideration of race and ethnicity would ultimately discourage prospective students from discussing their racial or ethnic identity or relying on recommendations that contain a racial or ethnic valence: leading to [African Methodist Episcopal] church choir, working for a black-owned business, or receiving a scholarship or internship designed to increase minority representation in certain industries or fields of study,” the education groups argued. “But everything applicants should be allowed and encouraged to talk about their life experiences and how they might contribute to the institution’s educational environment or community commitments.”
The groups also claimed that academic freedom was at risk.
“The First Amendment grants colleges and universities considerable deference to matters involving academic judgment and, in turn, protects the role of America’s colleges and universities as incubators for creative thought, productive dialogue, and innovative discovery,” the brief said. He went on to argue, “Academic freedom necessarily includes decisions about who to enroll at any institution.”
Edward Blum, president of Students for Fair Admissions, declined to comment.
In a brief in May, the plaintiff argued that Harvard and UNC-Chapel Hill’s policies are unconstitutional under the 14th Amendment and that legal principles requiring a race-neutral approach to class selection “cannot override the whims of university administrators.”
The plaintiff also accused Harvard of mistreating Asian-American applicants: “Its admissions process penalizes them because they are said to lack as much leadership, confidence, likability or friendliness as white applicants.” Harvard denies the allegations, and a federal judge sided with the university after a trial in 2018.
In filings last week, Harvard and UNC-Chapel Hill cited Supreme Court rulings in 1978, 2003 and 2016 that allow race-conscious admissions within certain limits. These decisions prohibit racial quotas but recognize that schools have a compelling educational interest in seeking racial diversity among students.
While the 14th Amendment promises equal protection under the law, Harvard argues, “it does not require us to ignore the common-sense reality that race is one of many things that meaningfully shape life experiences.”
Interest groups often weigh in on high-profile cases. It’s impossible to say which of these amicus or friend-of-the-court arguments might get the justices’ attention. The 40 groups featured in Monday’s brief span a broad spectrum of higher education, including the American Association of State Colleges and Universities, the Association of Catholic Colleges and Universities and the United Black College Fund.
For decades, the American Council on Education has relied heavily on the argument that the court has a duty to respect the judgment of colleges and universities.
“The quality of American higher education is rooted in government tolerance,” the panel argued in a 2003 affirmative action case involving admissions at the University of Michigan. It echoed that argument in a Texas case the court heard a decade ago.
Now, as a conservative judicial majority revisits those precedents, the council is adding a new twist to its defense of the status quo: that admissions procedures are essential to academic freedom and protected by the First Amendment.
“Colleges and universities cannot nurture the ‘robust exchange of ideas’ so characteristic of the American tradition without an ongoing national commitment to academic freedom,” he argued succinctly. “Within higher education, there are few places where the need for autonomous decision-making is more pressing than in the admissions process.”
The council said the issues concern more than highly selective colleges. He cited the recruiting needs of the university’s fine arts program, which works with a historically black dance group; a school dedicated to contemporary Native American and Alaska Native art; and a historically black seminary.
“These programs should be able to consider an applicant’s race or ethnicity as one of many factors to ensure that the diversity of their admitted students is in some way related to the mission they are pursuing,” the council said.