The future of affirmative action in higher education hangs in the balance when the Supreme Court on Monday hears arguments over race-conscious admissions policies at two prestigious universities.
Harvard and the University of North Carolina (UNC) will defend the use of their race - as one of the many admission criteria - to achieve the educational benefits of a diverse student body.
Their conservative-backed challenger, Students for Fair Admission (SFFA), argues that the school's approach violates constitutional protections and federal law and wants courts to bar the admissions office from considering applicants' race at all.
Ishan Bhabha, a partner at law firm Jenner & Block who filed the amicus brief on behalf of the Ivy League and other elite schools, said that if the Supreme Court took that dramatic step, the impact of higher education would be severe.
“If you don't have a different set of points of view … then one of the most important priorities of higher education institutions — is passing on knowledge, asking tough questions, exploring unknown concepts, and having one idea that clashes with another to try. and figuring out what's right or what's tenable — that's a huge obstacle,” said Bhabha, who co-leads her company's initiatives on diversity, equality and inclusion (DEI).
With a case coming after the Supreme Court's tenure that saw conservative judges overturn important decisions including Roe v. Wade, many legal experts believe that the long-standing precedent of affirmative action is now on the cutting block.
“This is a court that I think has a solid six justice majority that sees racial labeling or racial flagging, for whatever purpose, as a constitutional crime,” said Steve Schwinn, a law professor at the University of Illinois Chicago.
Challengers asked the conservative majority court 6-3 to overturn the landmark 2003 decision in Grutter v. Bollinger, which allows colleges to diversify their student population by using race as one part of a holistic assessment of individual applicants. a more liberal member of the court and the country's first female African-American judge, was rejected from the Harvard case because of her recent role on Harvard's board of trustees.
Among the SFFA's arguments against the school is its claim that it failed to pursue diversity goals through available race-neutral alternatives, as required under Supreme Court precedent. The schools, for their part, have argued that there is no viable alternative.
The SFFA suffered defeat in a lower court, where the judge rejected his argument based on a 5-4 ruling in Grutter, pushing their appeal to the Supreme Court.
In court papers, the SFFA has urged judges to find that Grutter challenged constitutional guarantees and laws on equal treatment under the law. The use of race in admissions decisions, they say, has led college admissions officers to engage in "abusive stereotypes."
“Applicants who ticked the box for African Americans at Harvard and UNC, for example, received preferences because of their race whether they grew up in poverty and went to failing schools, had parents who were multimillionaire executives, spent their formative years in Europe, were direct descendants of slaves, or second-generation immigrants from Africa,” the SFFA wrote, urging judges to change decades of affirmative action precedent.
In its lawsuit against Harvard, the SFFA went further, alleging that the school's admissions policies discriminated against Asian Americans. The group argues that Harvard's subjective "personal rating" scores, which tend to reflect cultural stereotypes, have made it harder for Asian Americans to be accepted compared to applicants from other races, regardless of personal circumstances.
Several Harvard students with Asian-American backgrounds who spoke to The Hill balked at how the SFFA framed their school's admissions policy. They are part of a diverse group of thousands of current Harvard students and alumni whose views are reflected in the amicus brief submitted by the NAACP Legal Defense Fund.
Among them was Angie Shin, a Korean-American who entered Harvard after graduating from a underfunded Los Angeles County public high school, whom she described as having a student body of mostly low-income, immigrant students from Black, Latino, and Asian backgrounds. , with only about half graduating on time and relatively few continuing on to college. In this environment, Shin said, the burden fell on him “to be literate” about the higher education opportunities available.
“For example, it took me years of Googling the internet and trying to figure out what scholarships are, how they work, and why they take applications so quickly,” he said.
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