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Inviting Government Input, Justices Push Off Harvard Admissions Fight

Only months after Biden's Justice Department abandoned the prior administration's opposition to race considerations in student admissions, it is being asked now to weigh in on a case against Harvard.

WASHINGTON (CN) — The Supreme Court asked the Biden administration Monday to give its take in a long-running case that says Harvard University discriminates against Asian-Americans in its treatment of race as a student admissions factor.

Including the order in a list this morning that contained no new grants, the court has put off saying whether affirmative action will join the ranks of other high-stakes topics, including abortion and gun rights, added in recent months to the court's fall calendar. Typically, it takes several months for the U.S. solicitor general to file a brief in a case when invited to do so.

Assuming the court eventually takes up the case with Harvard, a decision for either side would be momentous, predicted Julie Park, an associate professor at the University of Maryland who researches racial diversity in higher education.

“If the Supreme Court ruled in favor of Harvard, it would be a major affirmation of the continued ability of colleges to consider race as one of numerous factors in understanding a student's context,” noted Park, who disclosed that she has served as a consultant for Harvard in this case. “If the court rules in favor of SFFA, it would dramatically reduce the ability of selective colleges to recruit and retain students of color, especially Black, Latinx, and Indigenous students.”

SFFA is an abbreviation for Students for Fair Admissions, which invited the justices to weigh in after the First Circuit found no discrimination in the way Harvard considers race in admissions.

Pointing to Black enrollment in institutions like UCLA, UC Berkeley and University of Michigan, Park said researchers have identified sharp decreases in student populations at universities that are barred from using affirmative action. 

“Race-conscious affirmative action is irreplaceable,” Park explained, noting that the metric it is often used alongside social, geographic and other admissions classification factors.

Students for Fair Admissions claims that Harvard’s assignment of a “personal rating” to each applicant based on subjective criteria was a covert way of increasing acceptances for Black and Hispanic students while lowering them for Asians, a group they say tend to score higher on academics and other factors.

Represented by William Consovoy of McCarthy Connolly, the group argued in its brief to the high court that the 385-year-old university penalizes Asian Americans “because, according to its admissions office, they lack leadership and confidence and are less likable and kind.”

But the Cambridge-based Ivy League university disputes this.

“The record and the district court’s findings refute those contentions," WilmerHale attorney Seth Waxman wrote in a response brief. "Harvard does not automatically award race-based tips but rather considers race only in a flexible and non-mechanical way; consideration of race benefits only highly qualified candidates; and Harvard does not discriminate against Asian-American applicants.”

The U.S. Supreme Court has historically upheld affirmative action for universities, allowing them to consider race as one of several factors in determining who is accepted into the school. 

Park has written about the importance of race on college campuses and notes that race can be a critical influence in a person's life and the educational opportunities they receive. 

“We know that engaging with a racially diverse student body is a critical component of student engagement,” she said, highlighting research by Thomas Espenshade and Alexandria Radford that shows how low-income Asian Americans benefit in particular from race-conscious admissions policies in elite college admissions.

The high court last weighed in on affirmative action five years ago in Fisher v. University of Texas at Austin. Saying that UT-Austin could take race into account during admissions as long as it did so in order to promote diversity, the justices ruled narrowly in a 4-3 vote.

In the intervening years, however, two conservative Trump appointees have filled the seats of two of the members of the majority in this decision, the late Justice Ruth Bader Ginsburg and retired Justice Anthony Kennedy. Meanwhile, the three justices who dissented in Fisher — Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — still hold seats.

The federal government’s invitation to the Harvard case comes after it moved in January to back out of a case previously filed by the Trump administration in 2020 against Yale University saying that the institute discriminates against Asians and whites in the undergraduate affirmative action admissions process. As an arm of the Biden administration now, its backing of Harvard is all but certain.

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