Affirmative action opponents ask Supreme Court to hear case over Harvard’s policy

Opponents of affirmative action asked the Supreme Court on Thursday to use their case against Harvard to overrule precedent that has long allowed consideration of race in admissions and particularly enhanced opportunities for Black and Hispanic students.

The challengers claim that as Harvard College favors certain minority students, it unlawfully discriminates against Asian Americans by stereotyping them and limiting their numbers in the first-year class.

If the justices agree to hear the dispute, Students for Fair Admissions v. Harvard, it will set up a major confrontation over university practices first endorsed by the high court in 1978 and affirmed in 2003. The challengers say a 2003 ruling in a University of Michigan case, Grutter v. Bollinger, should be struck down.

Arising in this era of accelerated racial tensions and reckoning, the case would present one of the biggest battles of the 2021-22 Supreme Court session. The filing comes too late for the current term.

“Harvard’s mistreatment of Asian-American applicants is appalling,” the SFFA challengers contend, arguing that “Harvard engages in racial balancing and ignores race-neutral alternatives” for campus diversity.

Lower US courts sided with Harvard, rejecting the assertions of bias, racial balancing and workable race-neutral alternatives to generate diversity. In November, a Boston-based US appeals court ruled that Harvard’s screening process does not stereotype or penalize Asian-American applicants.

The new 6-3, conservative-liberal, Supreme Court may prove a more sympathetic venue to a lawsuit against racial policies in higher education. From the start, those suing Harvard have looked ahead to the conservative bench and a decision that would affect campuses nationwide.

Their latest filing cites past comments from justices on the right, including Chief Justice John Roberts, who as the challengers note, wrote in 2006, “It is a sordid business, this divvying us up by race.”

The litigation, begun in 2014, was brought on behalf of Asian Americans by Edward Blum, a conservative advocate who has long opposed racial policies and previously sought White students to challenge them. The Asian American community has not been united on this case, and some Asian-American advocates have sided with Harvard and its practice of considering students’ race, among other characteristics, to ensure racial and ethnic diversity.

SFFA is represented by lawyer William Consovoy, who has shepherded the Harvard case from the beginning, while he also handled various Donald Trump related litigation, including the fight over the former President’s financial documents.

The 2018 Boston trial in the controversy drew an overflow courtroom crowd and widespread public attention as it exposed the Ivy League school’s methods for recruiting minorities, along with details of the usually confidential process favoring athletes, legacies and applicants connected to major donors.

Since 1978, when the Supreme Court first endorsed the use of race in admissions, the justices have narrowly upheld affirmative action. But key justices who helped seal those decisions, most recently Anthony Kennedy and the late Ruth Bader Ginsburg, are no longer on the bench.

If conservative justices continue in their previous vein against racial policies, a ruling could end affirmative action at colleges and universities across the country.

Students for Fair Admissions sued under Title VI of the 1964 Civil Rights Act, which prohibits bias at schools receiving federal funds. The group contended that Harvard admissions officers stereotyped Asian-American applicants as “book smart” and “one-dimensional,” leading to lower “personal” scores. Harvard admissions officers combine such scores with various academic and extracurricular rankings to determine who obtains a spot.

In the Thursday filing, SFFA added, “Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less likable and kind.” Harvard has disputed that contention, and lower courts rejected the claim that Harvard engages in such stereotyping.

As SFFA asked the court to overrule precedent, it invoked terms from past decisions and argued, “At Harvard, race is not a ‘plus’ that is always ‘beneficial’; it’s a minus for Asian Americans. … 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.”

In lower court proceedings, Harvard countered that it considers race as one of many factors to create a diverse first-year class. Its lawyers have said the Cambridge, Massachusetts, college could fill its entering class fully with applicants who achieved perfect standardized test scores and perfect high school grades, but that Harvard seeks to capture a broader array of talent and life experiences.

In a statement Thursday, Harvard said it “remains deeply committed to expanding opportunity and creating a diverse community because both are essential to fulfilling our mission of educating engaged citizens and leaders. As earlier court decisions have confirmed, our admissions policies are consistent with Supreme Court precedent. 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.”

Harvard begins with a pool of about 40,000 applicants for an eventual freshman class of 1,600. In the current class of 2024, Asian Americans make up 24.6% of the class; African Americans 13.9%; Latinx 11.8%; and Native Americans and Native Hawaiians, 2.0%. The remaining category, 47.7%, is overwhelmingly White students. Those percentages have shifted slightly in recent years.

On this round, the US Department of Justice would not be expected to side with the SFFA challengers, as the Trump DOJ did in the lower courts. The Biden administration recently withdrew a similar lawsuit, brought directly by the government against Yale and alleging discrimination against Asian American applicants.

Harvard has long been a model for such affirmative action and in 1978, when the Supreme Court permitted the use of race in admissions, the justices favorably cited the Harvard example.

That case, Regents of the University of California v. Bakke, allowed colleges and universities to consider race as a “plus” factor among many criteria in admissions but forbade quotas.

Picking up on that Harvard history and also citing an opinion by Roberts, the SFFA challengers asserted, “Harvard is where this Court’s approval of race-based admissions began, and it is a fitting place for that approval to end. That fact, plus the extensive record developed below, make this case an ideal place to ‘stop discrimination on the basis of race’ by ‘stop[ping] discrimination on the basis of race.'”

This story has been updated with a statement from Harvard.