Supreme Court Pressed to Take Up Harvard Affirmative Action Case

A student group accusing Harvard of discrimination against Asians asked the Supreme Court to take up its case and ban the use of race in college admissions on Thursday.

The group, Students for Fair Admissions (SFFA), alleges that Harvard imposes a racial penalty on Asian applicants and engineers the demographic composition of each incoming class. But Thursday’s petition goes beyond the situation at Harvard and urges the Court to overturn the legal foundations of affirmative action.

“At Harvard, race is … an anvil on the scale that dominates the entire process,” the petition reads. “At Harvard, race is not a temporary evil to be repealed as soon as possible; it is a key aspect of identity that Harvard will use until a court makes it stop.”

Thursday’s petition tees up a showdown in the High Court over race and higher education. The plaintiffs will likely find a friendly hearing in the right-leaning Court, which has sounded growing skepticism about racial policies. The petition opens by noting that Chief Justice John Roberts called race-based decision-making “a sordid business” in a 2006 case. Yet the dispute comes at a time of acute racial tension, putting the Court at the center of a charged social conflict.

The case is also a measuring stick for the conservative legal movement. Conservative activist Edward Blum helped organize the suit, which has been litigated from its inception by William Consovoy, a Clarence Thomas acolyte who represented former president Donald Trump in disputes with Congress over his financial records. And the case comes to a Court with three Trump-appointed justices, all products of the conservative legal establishment.

The Justice Department filed briefs supporting SFFA in the lower courts, but its new Biden appointees are almost certain to back Harvard in the Supreme Court. The Biden DOJ on Feb. 3 abandoned a Trump-era lawsuit that claimed Yale University similarly discriminates against Asians and whites.

SFFA claims Harvard’s admissions department is biased against Asian applicants in many ways. For example, an admissions metric called the “personal rating” scores applicants on intangible characteristics such as helpfulness, courage, and likability. Asians scored lower than other racial groups on this metric because of unfair stereotypes that cast them as passive, STEM-oriented “model minorities,” the plaintiffs contend. Lawyers for Harvard argue that those data are cherry-picked.

A federal trial court and the First U.S. Circuit Court of Appeals sided with Harvard. The trial court feared that if Harvard eliminated racial preferences, the number of black and Hispanic students will fall by 1,000 over a four-year period. The court added that those students aren’t admitted simply “in the name of diversity.”

The Supreme Court allowed colleges to include race among admissions considerations in a 2003 case called Grutter v. Bollinger, citing a university’s special interest in having a diverse student body. The plaintiffs urged the Court Thursday to use their case to overturn Grutter.

Harvard emphasized its commitment to diversity in a statement following Thursday’s filing.

“We will continue to vigorously defend the right of Harvard College, and every other college and university in the nation, to seek the educational benefits that come from bringing together a diverse group of students,” the statement reads.

The petition attacks that diversity rationale on several grounds. Under Grutter, minority students are treated as “instruments” to benefit the institution and its white students, the petition argues. It is also unfair to assume that race is a perfect proxy for diverse life experiences, especially in a society where racial mixing is becoming a norm.

Some proponents of affirmative action agree with those criticisms, the petition notes. Its left-wing champions defend affirmative action as a remedy for historic injustices and not as a benefit for elite institutions. It leaves activists, administrators, and lawyers in the curious position of adhering to a precedent everyone thinks is flawed, the petition argues.

“That no one believes in Grutter suggests that Grutter is not worth believing in,” Thursday’s petition reads.

In general, the plaintiffs say the Constitution does not allow any race-based distinctions.

Harvard will likely respond to the petition within 30 days, unless an extension is granted. The Court will likely decide whether to hear the case early this summer. If they agree to get involved, arguments would follow in late 2021 or early 2022. The case is Students for Fair Admissions v. President and Fellows of Harvard College.

Students for Fair Admission by Washington Free Beacon

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