Affirmative action’s use in higher ed hangs in balance at Supreme Court

The future of affirmative action in higher education hangs in the balance as 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 be defending their use of race — as one of many admissions criteria — to attain the educational benefits of a diverse student body.

Their conservative-backed challengers, Students for Fair Admissions (SFFA), contend that the schools’ approach violates constitutional protections and federal law and want the court to prohibit admissions offices from considering an applicant’s race at all.

Ishan Bhabha, a partner at the law firm Jenner & Block who filed an amicus brief on behalf of Ivy League and other elite schools, said that if the Supreme Court takes that dramatic step, the repercussions for higher education would be severe.

“If you don’t have a series of divergent viewpoints … then one of the most important priorities of institutions of higher education — which is to forward knowledge, to ask difficult questions, to explore unknown concepts and have one idea clash against another to try and figure out which one is correct or which one is defensible — that is significantly hampered,” said Bhabha, who co-leads his firm’s initiative on diversity, equity and inclusion (DEI).

With the case coming on the heels of a Supreme Court term that saw conservative justices overturn landmark rulings including Roe v. Wade, many legal experts believe that longstanding affirmative action precedent is now on the chopping block.

“This is a court that I think has a solid six-justice majority that sees racial labeling or racial tagging, for any purpose whatsoever, as a constitutional evil,” said Steve Schwinn, a law professor at the University of Illinois Chicago.

The challengers are asking the 6-3 conservative majority court to overrule its landmark 2003 decision in Grutter v. Bollinger, which permits colleges to diversify their student populations by using race as one part of a holistic assessment of individual applicants.

Justice Ketanji Brown Jackson, one of the court’s more liberal members and the nation’s first female African American justice, is recused from the Harvard case because of her recent role as a member of Harvard’s board of overseers.

Among SFFA’s arguments in suing the schools is its claim that they failed to pursue diversity goals through available race-neutral alternatives, as required under Supreme Court precedent. The schools, for their part, have countered that there are no workable alternatives available.

SFFA suffered defeat in the lower courts, where judges rejected its arguments based on the 5-4 ruling in Grutter, prompting their appeal to the Supreme Court.

In court papers, SFFA has urged the justices to find that Grutter defies the constitutional and statutory guarantee of equal treatment under the law. The use of race in admissions decisions, they say, has led college admissions officers to engage in “crude stereotyping.”

“Applicants who check the box for African American at Harvard and UNC, for example, receive a preference because of their race whether they grew up in poverty and went to failing schools, have parents who were multimillionaire executives, spent their formative years in Europe, are the direct descendants of slaves, or are second-generation immigrants from Africa,” SFFA wrote, urging the justices to upend decades of affirmative action precedent.

In its suit against Harvard, SFFA goes a step further, alleging that the school’s admissions policy discriminates against Asian Americans. The group argued that Harvard’s subjective “personal ratings” scores, which tended to reflect cultural stereotypes, had made it harder for Asian Americans to be admitted compared to applicants of other races, regardless of personal circumstances.

Several Harvard students with Asian American backgrounds who spoke to The Hill pushed back forcefully against how SFFA had framed their school’s admission policy. They are part of a diverse group of thousands of current Harvard students and alumni whose views are reflected in an amicus brief filed by the NAACP Legal Defense Fund.

Among them is Angie Shin, a Korean American who entered Harvard after graduating from an underfunded Los Angeles County public high school, which she described as having a student body of largely low-income, immigrant students from Black, Latino, and Asian backgrounds, where only around half graduated on time and relatively few went on to obtain college degrees.In this environment, Shin said, the burden fell to her “to get literate” about what higher education opportunities were available. 

“For instance, it took me so many years of Googling around on the internet and trying to figure out what scholarships were, how they worked and why they were taking applications so early,” she said. 

As the more than 100 friend-of-court briefs filed in the case illustrate, the potential stakes of the dispute extend beyond academia.

According to Bhabha, of the firm Jenner & Block, if the court overrules Grutter, it could represent the first step in a coordinated effort to prohibit the consideration of race in other dimensions of American life.

“If Grutter is overturned, it will light a fire to systematically remove DEI initiatives from all aspects of society,” Bhabha said.