The Supreme Court announced on Monday that it will reconsider whether colleges and universities can use race as a factor in admissions.
The justices took up a pair of challenges to affirmative action policies at Harvard and the University of North Carolina. Both broadly allege that the schools discriminate against Asian and white applicants to admit a preferred number of black and Hispanic students. The plaintiffs' group behind both cases, Students for Fair Admissions, is urging the High Court to scuttle its affirmative action precedents and ban race-conscious admissions.
"Both the Pew Research Center and Gallup have released surveys which indicate that nearly 75 percent of Americans of all races do not believe race or ethnicity should be a factor in college admissions," said Students for Fair Admissions president Ed Blum. "In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others."
A victory for the plaintiffs would heighten pressure on President Joe Biden to deliver on his racial-equity agenda. As a candidate, he promised sweeping reforms on voting rights and policing, but a year of legislation on both topics is languishing in Congress with little prospect of success. And as Biden has struggled to convince lawmakers to support him, he faces an uphill battle in Monday’s cases before the right-leaning Court.
The plaintiffs have compiled evidence suggesting bias against Asians in admissions. At Harvard, admissions personnel rank students on a numerical scale of four different criteria: academics, athletics, extracurriculars, and a personal rating. Though Asian applicants exceed or are competitive with all racial groups in the first three domains, their personal scores are inexplicably lower than all other racial groups.
Students for Fair Admissions says those low scores reflect "model minority" bias. Asian applicants, they say, are victims of stereotypes that pigeonhole them as highly intelligent but boring and shy. In the evidence-gathering phase of the case, the plaintiffs obtained internal memos from Harvard’s Office of Institutional Research that flagged the disparate scoring outcomes, but the reports did not lead to any policy changes. The plaintiffs also note admissions rates by racial group hold steady over time.
"This manifest steadiness in the racial composition of successive admitted classes speaks for itself," the petition reads.
In the UNC case, Students for Fair Admissions obtained instant messages traded among admissions officers that show staff speaking crudely about race.
In one representative exchange, an admissions officer alerted a colleague to an applicant with a 2400 SAT score and top marks in Advanced Placement courses. The second officer asked whether the applicant was "brown." "Heck no. Asian," the first officer replied. "Of course," said the second officer. "Still impressive."
Monday’s news is unwelcome for progressives, who are already bracing for setbacks on abortion and gun rights this term. In their judgment, it’s another signal that the right-leaning Court will be an active force in politics, rather than a passive, reactive institution.
"The goal of these suits—to end the consideration of race in college admissions—is extreme, ignores the history of race discrimination, and threatens diversity and inclusion on campuses," said Sarah Hinger, a staff attorney for the ACLU’s racial justice program.
The Biden administration urged the justices to steer clear of Monday’s cases. They emphasized that the government’s personnel goals are tied to race-conscious admissions at the nation’s top colleges. Biden has prioritized minority appointments across the government, even as a handful of Democrats pan the dearth of Asian appointees in the cabinet and White House senior staff.
"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 administration’s top Supreme Court lawyer, solicitor general Elizabeth Prelogar, received a waiver from ethics officials to participate in the case, even though she is a former Harvard employee. A watchdog group, Protect the Public’s Trust, is pressing the administration for information related to the waiver.
The plaintiffs emphasize that race-conscious policies aren’t necessary to make sure disadvantaged students get a fair shot at admission. Eliminating legacy admissions, awarding preferences by zip code, and shoring up community college transfers will keep campuses open to all comers, the plaintiffs say.
There’s a strategic bonus to simultaneously attacking Harvard and UNC’s practices. UNC is a public school, so the plaintiffs can attack its program on statutory and constitutional grounds. Harvard is a private institution, though it is bound by federal anti-discrimination laws because it accepts tax dollars each year.
It’s most likely that the appeals will be heard during the Court’s next term, which begins in October. But it’s plausible that the cases could be scheduled for this term’s last argument session, which begins in April.
The cases are No. 20-1199 Students for Fair Admissions v. Harvard and No. 21-707 Students for Fair Admissions v. University of North Carolina.