Law & Courts

High Court Asks Biden Administration Views on Harvard Affirmative Action in Admissions

By Mark Walsh — June 14, 2021 3 min read
In this Nov. 10, 2020 photo the sun rises behind the U.S. Supreme Court in Washington. The Supreme Court seemed concerned Tuesday, Dec. 1, about the impact of siding with food giants Nestle and Cargill and ending a lawsuit that claims they knowingly bought cocoa beans from farms in Africa that used child slave labor. The court was hearing arguments in the case by phone because of the coronavirus pandemic.
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The U.S. Supreme Court on Monday asked President Joe Biden’s administration to chime in on whether the court should take up a high-stakes challenge to Harvard University’s consideration of race in undergraduate admissions.

The Harvard case is being watched closely in K-12 education as well as in higher ed as the outcome may affect whether schools and colleges may ever take account of race in selective admissions, drawing of school assignment maps, and scholarship programs.

The court’s brief order asking for the views of the acting U.S. solicitor general in Students for Fair Admissions v. President and Fellows of Harvard College (Case No. 20-1199) kicks the can down the road, as the Biden administration will likely take several months to file a brief making a recommendation before the justices again take up whether to grant review.

Students for Fair Admissions has asked the high court to review a November 2020 ruling by the U.S. Court of Appeals for the 1st Circuit, in Boston, that Harvard’s use of race was limited and was used to keep Black and Hispanic enrollment from “plummeting.”

SFFA argues that Harvard is “obsessed with race” and that its admissions policies penalize Asian-American applicants in violation of Title VI of the Civil Rights Act of 1964, which bars discrimination based on race and other factors in federally funded programs.

The group attracted 20 friend-of-the-court briefs in support of its appeal, including one from Kenneth L. Marcus, who was head of the U.S. Department of Education’s office for civil rights under President Donald Trump.

That brief said “schools continued to struggle … with issues of race” in recent years, citing among other things reports that some K-12 schools planned to re-open under COVID-19 to students of certain racial demographics ahead of others. The brief says OCR reminded schools that such race-based actions would violate Title VI.

Harvard has urged the justices not to take up the case because two lower courts have found that the university’s admissions program was narrowly tailored to achieve racial diversity.

“Consideration of race in this manner enables schools to pursue profound educational benefits while using race only in a limited way and only to the extent needed to assemble diverse classes that will produce such benefits,” Harvard said in its brief.

The Trump administration had supported the challengers of Harvard’s admissions program in the First Circuit, arguing in a 2020 brief that “the wisdom of race-based admissions policies like Harvard’s is subject to vigorous debate. But Title VI and Supreme Court precedent impose limitations on Harvard’s ability to consider race in its admissions process—limitations that Harvard has not respected.”

When affirmative action was last before the Supreme Court in Fisher v. University of Texas at Austin (Fisher II), President Barack Obama’s administration supported the consideration of race in undergraduate admissions at the flagship UT campus.

“The university defined its educational objectives with clarity, explaining that it sought to improve opportunities for cross-racial interaction, particularly in the classroom, in order to fulfill its mission of training the next generation of Texas leaders,” the Obama administration said in a 2015 brief. “The university also identified an interest in admitting minority students who had distinguished themselves academically in ways not captured by class rank or who had demonstrated nonacademic achievements and leadership abilities.”

In its 2016 decision in Fisher II, the Supreme Court ruled 4-3 to uphold UT’s race-conscious admissions plan, with Justice Anthony M. Kennedy writing that “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

That case was decided soon after the death of Justice Antonin Scalia, and with Justice Elena Kagan recused. Kennedy has since retired, and another member of the Fisher II majority, Justice Ruth Bader Ginsburg, died last year.

Many legal observers expected the current high court, with its conservative majority bolstered with the addition of Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett in recent years, to jump at the chance to take up the Harvard case.

And the court may yet do that, but not before it receives the views of the Biden administration.


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