U.S. Supreme Court to hear challenge to race-conscious college admissions

Students sit on the steps of Wilson Library on the campus of University of North Carolina at Chapel Hill, North Carolina, U.S., September 20, 2018. REUTERS/Jonathan Drake/File Photo

The U.S. Supreme Court on Monday agreed to hear a bid to bar Harvard University and the University of North Carolina from considering race in undergraduate admissions in a case that imperils affirmative action policies widely used to increase the number of Black and Hispanic students on American campuses.

The justices agreed to hear appeals by a group called Students for Fair Admissions, founded by anti-affirmative action activist Edward Blum, of lower court rulings that upheld the programs used by the two prestigious universities to foster a diverse student population. The cases give the court, with its 6-3 conservative majority, a chance to end such policies.

The lawsuits accused the universities of discriminating against applicants on the basis of race in violation of federal law or the U.S. Constitution. Blum’s group alleged in the Harvard case that the school discriminated against Asian American applicants. In the UNC case, Blum’s group alleged that the university’s policy discriminated against white and Asian American applicants.

The universities have said they use race as only one factor in a host of individualized evaluations for admission without quotas, and that curbing the consideration of race would result in a significant drop in the number of Black, Hispanic and other underrepresented students on campus.

The Supreme Court has a 6-3 conservative majority. U.S. conservatives long have opposed affirmative action programs used in such areas as hiring and student admissions to address past discrimination against minorities.

The use of affirmative action has withstood Supreme Court scrutiny for decades, including in a 2016 ruling involving a white student backed by Blum, who challenged a University of Texas policy, though the justices have narrowed its application. The eventual ruling in the new challenge could dilute or potentially eliminate college affirmative action programs.

Blum’s group sued Harvard in 2014, accusing it of violating Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, color or national origin under any program or activity receiving federal financial assistance. Harvard is a private university founded in 1636 and located in Cambridge, Massachusetts. It receives federal funds.

The group also sued UNC in 2014, accusing the university of impermissibly using race as the main factor in admissions in violation of the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law. UNC, located in Chapel Hill and chartered in 1789, is North Carolina’s flagship public university.

The Supreme Court first upheld affirmative action in college admissions in a landmark 1978 ruling in a case called Regents of the University of California v. Bakke that held that race could be considered as a factor but racial quotas could not be used.

Blum’s group asked the Supreme Court to overturn a 2003 Supreme Court ruling in a case called Grutter v. Bollinger involving the University of Michigan Law School that held that colleges could consider race as one factor in the admissions process because of the compelling interest of creating a diverse student body.

Supreme Court Justice Sandra Day O’Connor wrote in that ruling that she expected “the use of racial preferences will no longer be necessary” by 2028.

President Joe Biden’s administration has backed Harvard, telling the justices in a court filing not to hear that case. The court’s precedents “correctly recognize” that the educational benefits that result from diversity justify race-conscious measures.

Biden’s predecessor Donald Trump, a Republican, had backed Blum’s lawsuit against Harvard.

Students for Fair Admissions said Harvard’s policies limited Asian Americans to 20% of incoming undergraduate classes and left them less likely to be admitted than white, Black and Hispanic applicants with comparable qualifications. It said in court papers that Harvard “automatically awards racial preferences to African-Americans and Hispanics.” Harvard said the challengers depicted its policies inaccurately.

The Supreme Court’s conservative majority has widened since it ruled 5-4 in favor of the University of Texas in 2016, with now-retired conservative Justice Anthony Kennedy joining four liberal justices. The addition of three justices appointed by former Republican President Donald Trump moved the court rightward.

Under Chief Justice John Roberts, the court has been hostile to other efforts to remedy past racial discrimination. In 2013 it struck down a key part of the Voting Rights Act, enacted in 1965 to ensure that minorities could vote. In 2020, the court weakened another key part of that law. 

The case is expected to be heard during the court’s 2022 term, which begins in October and ends in June 2023.