US Supreme Court to review affirmative action in admissions

Nation’s top judiciary agrees to question victories for Harvard and North Carolina upholding long-established right to consider race in admissions

January 24, 2022
Gates at Harvard University

The US Supreme Court, as had been long expected, will use its expanded conservative majority to reassess race-based affirmative action policies in college admissions.

The top court – with a 6-3 conservative advantage from the Trump years – announced that it will consider overturning cases at Harvard University and the University of North Carolina that affirmed the right of selective institutions to consider student race as one factor in winnowing applicants.

The cases are set for the court session that begins in October, with a ruling expected by the following summer.

The move threatens a setback for four decades of unanimous court decisions giving US colleges and universities the right to create diverse campus communities, said Harvard’s president, Lawrence Bacow.

“Considering race as one factor among many in admissions decisions produces a more diverse student body, which strengthens the learning environment for all,” Professor Bacow said.

Existing Supreme Court precedent makes clear that colleges can consider a student’s race in their admissions processes as long as it is not their determining factor in any particular case. Harvard and UNC both proved in lower-court trials that their practices met that test.

But their opponents – in particular, a conservative organisation known as Students for Fair Admissions, which has been filing the lawsuits against Harvard, UNC and others – have focused their arguments more on their sense that any type of racial advantage should not be tolerated, even if it is helping to remedy the nation’s long history of race-based discrimination.

The Supreme Court’s chief justice, John Roberts, while regarded as a moderate conservative on some issues, has made clear his opposition to race-based preferences. And he has been joined by three unambiguously conservative appointees during the Trump administration, posing a clear threat to past Supreme Court rulings on affirmative action decided by a single vote.

The head of Students for Fair Admissions, Edward Blum, celebrated the Supreme Court’s decision to consider reversing its past decisions on affirmative action. “Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group,” he said.

Mr Blum also asserted that polling by the Pew Research Center and Gallup shows that large majorities of Americans of all races do not believe that race or ethnicity should be a factor in college admissions. Data by those two pollsters do show public opposition to such practices, but they also show strong public support for companies and other organisations working to promote racial and ethnic diversity in their ranks.

Harvard won its court case in 2018 and UNC won its case last year. Before agreeing to consider a review, the Supreme Court asked the Biden administration for its opinion on the Harvard case. The US solicitor general, Elizabeth Prelogar, answered last month, recommending that the top court leave Harvard’s victory intact.

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