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But a small majority of the Supreme Court that ruled Grutter v. Bollinger in 2003 and reaffirmed in 2016, they are gone, replaced by a much more conservative bloc. Challengers say the court should overturn those precedents and rule that racial considerations that help underrepresented black and Hispanic students violate federal law and the Constitution.
The court — its six-member conservative majority bolstered by three appointments from President Donald Trump — has now taken up cases that could change its jurisprudence on some of the most controversial issues of the day: abortion, gun rights and race.
Edward Blum, president of Students for Fair Admissions, a group that has led the affirmative action challenges, said polls show Americans strongly disapprove of race-conscious admissions.
“In a multiracial, multiethnic nation like ours, the bar for college admissions cannot be raised for some races and ethnicities but lowered for others,” Blum said in a statement. “Our nation cannot correct past discrimination and racial preferences with new discrimination and different racial preferences.”
Blum’s group told the Supreme Court that it would be appropriate to end the use of racial bias by overturning the policies at “the oldest private college in the country and … at the oldest public college in the country.”
Harvard does not discriminate, University President Lawrence S. Bacow said in a statement. He said the court’s acceptance of the cases “endangers 40 years of legal precedent that gives colleges and universities the freedom and flexibility to create diverse campus communities.”
“Considering race as one of many factors in admissions decisions creates a more diverse student body, which strengthens the learning environment for all,” he said.
Both universities told the Supreme Court that, as an extensive investigation by lower courts showed, they respected federal law and constitutional rights in forming their student groups.
“The university has embraced diversity in all its forms as a central feature of its educational mission,” North Carolina Attorney General Josh Stein (D) wrote to the court. “It flexibly treats race as only one of many factors in its comprehensive admissions process. And she carefully considered and adopted viable race-neutral alternatives.”
Harvard, whose admissions policy is under scrutiny because it receives federal funding, said its process was held up as a national standard.
“To assemble the strongest freshman class, Harvard seeks students who excel beyond academics and who will bring unique experiences, perspectives, talents and interests to campus,” the court filing says. To find the strongest candidates, “40 admissions officers conduct a lengthy whole-person screening process in which each applicant is assessed as a unique individual,” the application states.
The Trump administration supported Harvard’s challengers in lower courts, but the Biden administration reversed that position and told the court it should not accept the challenge.
White House spokeswoman Jen Psaki said at a briefing Monday that the administration strongly believes “in the benefits of diversity in higher education and that we take very seriously our commitment to promoting equity and equal opportunity for historically underserved populations.”
In a 2016 decision, the court upheld the University of Texas’ limited use of race in student admissions.
The majority opinion, written by Justice Anthony M. Kennedy, echoed the high court’s rulings that diversity justifies some interference with the constitutional guarantee of equal protection, which generally prohibits 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.
Dissenters in Texas Case – Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — remain, now joined by Trump nominees Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
While Roberts often plays a moderator role on the court and is reluctant to overturn judicial precedents, he has been a staunch opponent of affirmative action.
The petition filed by challengers in the Harvard case says so in the first sentence, quoting an opinion Roberts wrote during his first term on the court in 2006: “This is a dirty business, it divides us along racial lines.”
The prospect 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 Supreme Court guidance that it is acceptable to consider race as one of many factors in a comprehensive application review. Their rationale is that racial diversity on campus serves a compelling educational interest. In other words, students learn through encounters with peers who look different from them.
But there are important caveats. The court said colleges must consider whether race-neutral admissions practices can achieve their diversity goals. And he banned the use of racial quotas to fill classroom positions.
In addition, some states, including California, Michigan, and Florida, have banned the consideration of race in public university admissions. Such measures enjoy great political support. In 2020, California voters overwhelmingly rejected a proposal to repeal the state’s ban on affirmative action.
The lawsuit against Harvard raised a particularly explosive allegation: that the university allowed racism against Asian-Americans to skew the review of their applications.
Blum’s group cited data it said showed a tendency for Harvard to give Asian applicants high marks for academic performance but penalize them on assessments of personal qualities such as leadership and compassion.
The lawsuit also revealed an internal Harvard review that suggested Asian-Americans would have been admitted in greater numbers if academic performance had been the sole criterion for admission — a study the plaintiff claimed Harvard buried.
The university said the review was incomplete and preliminary. He also denied discriminating against Asian Americans or punishing them in any way.
After a trial in Boston, U.S. District Judge Allison D. Burroughs rejected those claims in a ruling for Harvard in October 2019. Burroughs called Harvard’s process “flawed” but also “a very good admissions program that passes constitutional muster.” She found no compelling evidence of “racial hatred or conscious prejudice” against Asian Americans.
In November 2020, the U.S. Court of Appeals for the 1st Circuit upheld the Burroughs ruling.
In the North Carolina case, the plaintiff alleged that the state’s flagship public university discriminated against white and Asian American students. “UNC mechanically uses race to ensure the admission of the vast majority of underrepresented minorities,” Students for Fair Admissions argued.
After a trial in Winston-Salem, N.C., U.S. District Judge Loretta C. Biggs ruled in October that the school’s class selection method was constitutional and nondiscriminatory. Biggs also emphasized the importance of this issue for students of color.
The Supreme Court took up the UNC case before it could be heard by the US Court of Appeals for the 4th Circuit.
Black students were not allowed at UNC at Chapel Hill until 1950. Last year, they made up 12 percent of freshman enrollment, according to the university. The proportions were 21 percent for Asian or Asian-American students and 65 percent for white students. (These numbers include some multiracial overlap.)
“Race is so intertwined with every aspect of minority students’ life experiences,” Biggs wrote. “Ignore it, minimize its importance and measure it only with statistical models like [Students for Fair Admissions] did, misses important context.”
UNC at Chapel Hill is one of the more selective public universities in the country. He offered admission to 19 percent of the more than 53,000 who applied to join his freshman class last fall.
For Harvard, admission is extremely competitive. Last year, the university said it had offered seats to 1,968 candidates in a record batch of 57,435 candidates. The university said 13 percent of those admitted identified as Latino, 18 percent as African American or black, and 27 percent as Asian.
Eugene Scott contributed to this report.
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