Adam Liptak, New York Times, January 24, 2022
The Supreme Court agreed on Monday to decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful, putting the fate of affirmative action in higher education at risk.
The court has repeatedly upheld similar programs, most recently in 2016. But recent changes in the court’s membership have made it more conservative, and the challenged programs are almost certain to meet skepticism.
The case against Harvard accused it of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness and by effectively creating a ceiling for them in admissions.
Lawyers for Harvard said that the challengers had relied on a flawed statistical analysis and denied that the university discriminated against Asian American applicants. More generally, they said that race-conscious admissions policies are lawful.
In the North Carolina case, the plaintiffs made more familiar arguments, saying the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.
Both cases were brought by Students for Fair Admissions, a group founded by Edward Blum, a legal entrepreneur who has organized many lawsuits challenging race-conscious admissions policies and voting rights laws, several of which have reached the Supreme Court.
In the recent suits, the universities both won in federal trial courts, and the decision in Harvard’s favor was affirmed by a federal appeals court.
The Supreme Court’s decision to hear both cases may have been influenced by the differing legal regimes that apply to the two schools. Harvard, a private entity, must comply with a federal statute that bans race discrimination as a condition of receiving federal money; the University of North Carolina, which is public, must also satisfy the Constitution’s equal protection clause.
The Supreme Court’s 2016 decision upheld an admissions program at the University of Texas at Austin, holding that officials there could continue to consider race as a factor in ensuring a diverse student body. The vote was 4 to 3. (Justice Antonin Scalia had died a few months before, and Justice Elena Kagan was recused.)
Writing for the majority, Justice Anthony M. Kennedy said that courts must give universities substantial but not total leeway in devising their admissions programs.