(AP) — With abortion
already on the docket, the conservative-dominated Supreme Court
is debating whether to include race as a factor in college admissions
The justices could decide whether to hear an appeal alleging that Harvard discriminates against Asian American applicants as early as Monday, in a case that could have national ramifications, though the case would not be argued until the fall or winter.
“It would be a big deal
because of the nature
of college admissions across the country and the stakes of having this issue before the Supreme Court,” said Gregory Garre, who twice defended the University
’ admissions program in front of the justices.
The presence of three Trump appointees could prompt the court to hear the case, despite the fact that it has only been five years since its last decision on affirmative action
in higher education
. In that Texas case, the court reaffirmed in a 4-3 decision that colleges and universities may consider race in admissions decisions, but they must do so in a narrowly tailored manner.
Justice Ruth Bader Ginsburg, who died in September, and Justice Anthony Kennedy, who retired in 2018, were both members of the court's four-justice majority.
The three dissenters in the case, Chief Justice John Roberts
, Justices Clarence Thomas, and Samuel Alito, remain on the court. Roberts, a moderate on some issues, has been a steadfast vote to limit the use of race in public programs, writing once, “It is a sordid business
, this dividing us up by race.”
The court's willingness to intervene in major cases involving abortion and gun rights appears to be based on the court's new, more conservative composition, as similar appeals had previously been denied.
The Harvard case, like the abortion case, lacks a split among appellate courts, which frequently piques the high court's interest in a case.
The Supreme Court has weighed in on college admissions several times over the last 40 years, with the current dispute harkening back to its first major affirmative action case in 1978, when Justice Lewis Powell laid out the rationale for considering race even as the court barred the use of racial quotas in admissions.
Powell praised Harvard in Regents of the University of California
v. Bakke as “an illuminating example” of a college that “takes race into account in achieving the educational diversity
valued by the First Amendment
In her opinion upholding the University of Michigan
's law school admissions program, Justice Sandra Day O'Connor referred to the Harvard plan as well.
Now, opponents of race-based affirmative action have targeted the Harvard program.
The challenge to Harvard is being led by Edward Blum and his Students for Fair Admissions, who have been working for years to eliminate racial considerations from college admissions.
According to the group, Harvard imposes a "racial penalty" on Asian American applicants by systematically scoring them lower in some categories than other applicants and giving "massive preferences" to Black
and Hispanic applicants.
Harvard categorically denies discriminating against Asian American applicants and claims that its consideration of race is limited, pointing out that lower courts have agreed with the university.
In November, a federal appeals court in Boston
ruled that Harvard used race in a limited manner consistent with Supreme Court precedents.
According to Harvard’s website, the class that just finished its freshman year is roughly one-quarter Asian American, 15% Black, and 13% Hispanic. “If Harvard were to abandon race-conscious admissions, African-American and Hispanic representation
would decline by nearly half,” the school told the court in an effort to keep the case out of court.
The Trump administration
supported Blum's lawsuit
against Harvard and also filed its own lawsuit against Yale, alleging discrimination against Asian Americans
The Yale suit has already been dropped, and the Biden administration
will almost certainly side with Harvard in the Supreme Court if the case goes forward.
William Consovoy is the lead attorney on the appeal, and he also represented Trump in his unsuccessful bid to keep his tax returns from the Manhattan district attorney
When the Supreme Court upheld the University of Michigan's law school program in Grutter v. Bollinger in 2003, O'Connor noted the quarter-century since the Bakke decision.
“We anticipate that, in 25 years, the use of racial preferences will no longer be required to further the interest approved today,” O'Connor wrote.
O'Connor's timeline set 2028 as a possible endpoint for racial preferences, but a more conservative court than the one she served on could push that date forward by several years.