The Biden administration urged the Supreme Court to ignore a case alleging that Harvard discriminates against Asians in admissions.
The lawsuit accuses Harvard of holding Asians to a higher standard and racially balancing its classes and asks the Court to ban the use of race in college admissions. In a legal brief filed Wednesday night, the Justice Department said the plaintiffs have not given persuasive reasons to revisit landmark rulings that authorize affirmative action.
Though President Joe Biden prioritized female and minority appointments to senior posts, top Democrats panned the lack of Asian representation in his administration. Senators Tammy Duckworth (D., Ill.) and Mazie Hirono (D., Hawaii) threatened to tank some of Biden's picks over the lack of Asian nominees. Despite the dustup, the Justice Department's brief tethers Biden's personnel goals to affirmative action practices at elite schools like Harvard.
"Among other things, the government has a vital interest in drawing its personnel—many of whom will eventually become its civilian and military leaders—from a well-qualified and diverse pool of university and service academy graduates," the brief reads.
The petition will become a priority issue inside the Court after the new year. The justices finalize their docket for each term at the end of January, and the Harvard case is their biggest piece of pending business. If the case is granted before the January cutoff, arguments will be scheduled for the spring, with a decision to follow in June 2022. But with sensitive decisions on abortion and gun rights coming this summer, the Court might defer action until later in the year.
The plaintiffs in the case, an advocacy group called Students for Fair Admissions, broadly allege that anti-Asian stereotypes infuse a personality appraisal of each applicant. They also say Harvard builds its classes along racial lines. A federal trial court and the First U.S. Circuit Court of Appeals sided with Harvard and rejected those allegations.
The government said there is no reason for the Supreme Court to double-check those findings or reconsider its landmark affirmative action cases. There's added reason to avoid revisiting precedent in a case involving Harvard, the administration warned. When the Court first authorized race-conscious admissions in a 1978 case, Regents of the University of California v. Bakke, it singled out Harvard's practices as a national benchmark.
"Revisiting this Court's settled precedent in the specific context of Harvard's admissions process would place the disruption of … reliance interests in stark relief. Harvard's approach has been a point of reference in decisions addressing other institutions' policies since Bakke," the brief reads. "There, Justice Powell cited Harvard's process as 'an illuminating example' of how a school's compelling interest in student-body diversity can be pursued without quotas or racial balancing."
Another reason to turn down the appeal is that the plaintiffs' central allegation—Harvard discriminates against Asian applicants—is "factually and legally distinct" from their challenge to affirmative action in general, the government argued. Relying on stereotypes to penalize a racial group isn't allowed under Bakke and its successor cases. It wouldn't make sense, the government said, to reconsider affirmative action in a case where the plaintiff's most serious claim doesn't implicate the Court's precedents.
The Justice Department during the Trump administration backed Students for Fair Admissions. The department was expected to flip sides after the change in administrations. The Court in June called on the Justice Department to give its views on the case.
Kristen Clarke, the assistant attorney general for civil rights, helped craft the Biden administration's brief. Apart from the Harvard case, she also played a lead role in preparing the Justice Department's lawsuit against Georgia over the state's recent voting law. Stopping Clarke's confirmation was a top priority for Senate Republicans, who cited her race-based approach to litigation and an anti-Semitic event she organized in college as grounds for opposing her nomination.
Students for Fair Admissions is asking the Court to hear the Harvard case alongside a separate challenge to the University of North Carolina's affirmative action program. Harvard is subject to federal anti-discrimination laws even though it is a private school because it accepts federal dollars each year. UNC is a public school, so the plaintiffs can attack its practices under statutory law and the Constitution.
Apart from the UNC and Harvard cases, another lawsuit challenging the University of Texas's admissions practices is ongoing in the federal courts. Students for Fair Admissions is the plaintiff in the Texas case as well.
The case is No. 20-1199 Students for Fair Admissions v. President and Fellows of Harvard College.