Supreme Court Puts Off Decision on Harvard Affirmative Action Appeal

(Glen Cooper/Getty Images)
June 14, 2021

The Supreme Court on Monday delayed deciding whether it will hear a constitutional challenge to Harvard’s race-conscious admissions practices, which urges the justices to end affirmative action in college admissions.

In a routine set of orders, the justices asked the Biden administration to file legal papers explaining its view of whether they should hear the case. Such requests are normal, and generally take the Department of Justice several months to complete.

As a result, the justices will not revisit the petition until this fall, at the earliest. A grant would add a third high-profile case to a term that already includes landmark abortion and gun-rights cases.

The plaintiffs in the case, an advocacy group called Students for Fair Admissions, broadly allege that Harvard imposes a race-based penalty on Asian applicants and engineers the racial makeup of each incoming class. A federal trial court and the First U.S. Circuit Court of Appeals rejected those accusations and sided with Harvard.

Now before the Supreme Court, the plaintiffs argue that the justices should overturn the legal foundations of affirmative action. The far-reaching request was expected. Edward Blum, a longtime anti-affirmative action activist, helped engineer the Students for Fair Admissions case. Blum was the architect of previous challenges to race-conscious policies in the High Court.

Harvard urged the Court to deny Students for Fair Admissions’s appeal in May. The university’s response includes the same cagey explanations and guarded statements that have fed criticism of the Court’s affirmative action precedents for decades, which could bait conservative interest in revisiting the topic.

The Trump Justice Department backed Students for Fair Admissions in the lower courts, but its new Biden appointees are almost certain to support Harvard in the Supreme Court. The Biden Department of Justice on Feb. 3 abandoned a Trump-era lawsuit that claimed Yale University similarly discriminates against Asians and whites.

The case is No. 20-1199 Students for Fair Admissions v. President and Fellows of Harvard.