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Affirmative action challengers bring Harvard, UNC to high court

The justices took up a pair of cases Monday that tackle admissions at Harvard and the University of North Carolina. 

WASHINGTON (CN) — The Supreme Court agreed Monday morning to hear two challenges to the consideration of race in higher education admissions. 

While the court has repeatedly upheld affirmative action programs in the past — most recently in 2016 — the conservative-majority court will get another chance to roll back the practice in a challenge from students at Harvard College and the University of North Carolina. 

The case against the nation’s oldest private college claims Harvard’s policies discriminated against Asian American students by considering race in the admissions process. Students suing the University of North Carolina claim that the college’s policies favored Black, Hispanic and Native American applicants, discriminating against Asian American and white students. 

Both suits are led by the nonprofit Students for Fair Admissions, which is challenging the 2003 precedent Grutter v. Bollinger in which the high court upheld affirmative action admissions policies at the University of Michigan Law School. The justices will also consider if Harvard violates Title VI of the Civil Rights Act by allegedly penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting race-neutral alternatives. 

The suit against Harvard started in 2014 but it wasn't until 2019 that the federal judge hearing the case sided with Harvard on the merits, finding that the college’s policies were consistent with the court’s precedents. The First Circuit affirmed. 

While the students are asking the court to overrule Grutter, they also claim Harvard does not comply with it. 

“At Harvard, race is not a ‘plus’ that is always ‘beneficial’; it’s a minus for Asian Americans,” William Consovoy, an attorney with Consovoy McCarthy representing the students, wrote in their petition for a writ of certiorari. “At Harvard, race is not a 'factor of a factor of a factor'; it is an anvil on the scale that dominates the entire process. At Harvard, race is not a 'temporary' evil to be repealed as soon as possible; it is a key aspect of identity that Harvard will use until a court makes it stop.” 

The students contend that the 14th Amendment doesn’t support Grutter and that the court’s equal-protection jurisprudence conflicts with the precedent. 

“Although Grutter praised the ‘educational benefits’ of student body diversity writ large, its assumption that a university can predict, based solely on race, an applicant’s ‘views’ or ‘experience[s]’ is little more than racial stereotyping,” Consovoy wrote. 

Harvard began taking action to admit more Asian American students after it was sued, going so far as to admit them at a higher rate than white students for the first time in 2019. As the case went to trial, Harvard’s formal guidance for reviewing applications was made public, offering written guidance for it considers race in admissions. 

Harvard claims it does not discriminate against Asian American applicants and that race considerations are a benefit only to highly qualified students.

“Harvard does not automatically award race-based tips but rather considers race only in a flexible and nonmechanical way; consideration of race benefits only highly qualified candidates; and Harvard does not discriminate against Asian-American applicants,” Seth Waxman, an attorney with Wilmer Cutler Pickering representing Harvard, wrote in the university’s brief.

In the case against UNC, students allege that online chats from admissions officers show that the school uses race at every stage of the application process.

The case against UNC began the same day as the Harvard case in 2014, also implicating the 14th Amendment and Title IV. Seven years after the suit was filed, a federal judge ruled that UNC’s use of race in admissions was consistent with the court’s precedents. The court also found that UNC had no viable race-neutral alternatives that would allow it to achieve the educational benefits of diversity. The Fourth Circuit has not yet ruled on the case, but the students asked the high court to step in now so that their case alongside Harvard’s. 

UNC claims that diversity is at the core of its mission but race is just one factor considered during the admissions process. 

“The university has embraced diversity, in all its forms, as a core feature of its educational mission,” Joshua Stein, attorney general for the North Carolina Department of Justice representing UNC, wrote in the college’s brief. “It considers race flexibly as merely one factor among numerous factors in its holistic admissions process.” 

Invited by the court to weigh in on Harvard’s challenge, the Biden administration portrayed the case as a bad vehicle for reconsidering precedent. 

“The principles that Grutter articulated are correct,” U.S. Solicitor General Elizabeth Prelogar wrote in a friend of the court brief. “The Court explained that the educational benefits of diversity may qualify as a compelling interest because a university may conclude that those benefits are ‘essential to its educational mission.’ The educational benefits of diversity, including racial and ethnic diversity, include ‘better prepar[ing] students for an increasingly diverse workforce and society,’ ‘promot[ing] ‘cross-racial understanding,’’ and ensuring that ‘the path to leadership [is] visibly open to talented and qualified individuals of every race and ethnicity.’”

When the justices reaffirmed Grutter in the 2016 case Fisher v. University of Texas, they did so with a 4-3 majority because Justice Elena Kagan, a former U.S. solicitor general, recused herself from the case and because no replacement had been chosen yet to replace the late Justice Antonin Scalia.

The majority found that Harvard's affirmative action policy did not violate the 14th Amendment but the ruling imposed strict limits on the programs.

In the intervening years, two of the justices who upheld Grutter — Ruth Bader Ginsberg and Anthony Kennedy — have left the bench. The court now has added three conservative justices to the court. Justice Stephen Breyer is the only remaining justice on the bench who voted in the majority in Grutter

Per its custom, the high court did not issue any comment on the decision to take up the case. It was one of three taken up in Monday's list of orders. The other two cases involve the Federal Trade Commission's authority to conduct antitrust investigations and the Environmental Protection Agency's definition of what constitutes a wetland under the Clean Water Act.

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