Supreme Court adds affirmative action to list of potential targets

The U.S. Supreme Court will hear arguments in the fall on the constitutionality of Harvard’s affirmative action program.

Charles Krupa/AP

The Supreme Court agreed Friday to revisit the issue of affirmative action in higher education, deciding to hear a case challenging Harvard and the University of North Carolina’s use of race in college admissions. university.

The court having already heard arguments this quarter on abortion and guns, the affirmative action case marks another politically charged issue that threatens to uproot decades of legal doctrine.

The court will look at more than the specifics of how Harvard and UNC run their affirmative action programs. It will also re-examine 43 years of precedent, asking whether race can ever play a role in admissions.

The Harvard case began in 2014, when the conservative activist group Students for Fair Admissions filed a lawsuit against Harvard. The lawsuit claimed that Harvard improperly used race in its admissions process and discriminated against Asian Americans.

Beginning in 1978, the Supreme Court has upheld the constitutionality of affirmative action programs three times. In each of these cases, the court review opinion was written by a traditionally conservative judge. But three of the justices who voted against affirmative action in 2016 — Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito — are still on the court, and they’ve now been joined by three Trump-appointed conservatives.

With respect to affirmative action, Harvard’s program has long been a model cited by the court in dealing with other schools’ programs.

Now that Harvard must defend its own policies, the school says it treats each applicant as an individual and views race as just one piece of a holistic puzzle. But some Asian American students who were denied admission countered that Harvard’s defense amounted to subterfuge. They alleged that Harvard was effectively using racial quotas and discriminating against Asian Americans.

The district court, however, found little evidence to support these claims, and in November 2020 an appeals court agreed. In their appeal to the Supreme Court, the students are asking the justices to completely strike out the affirmative action.

The man behind this lawsuit and others like it is Edward Blum, a conservative legal movement in his own right. The former financial adviser and former congressional candidate has been the driving force behind business opposing affirmative action for years. He helped organize more than two dozen similar lawsuits, including the 2016 Supreme Court case that unsuccessfully challenged the University of Texas’ affirmative action policy.

Blum also spearheaded attacks on the Voting Rights Act, culminating in the 2013 court decision in Shelby County v. Holder, who gutted the key provision of the landmark law.

After the court dismissed Blum’s attack on Texas politics in 2016, he revamped his strategy, this time taking aim at Harvard. He argued that high-achieving Asian American students were denied admission because of their race. Although he initially struggled to get Asian American students to join his action – he sued before finding any – his Students for Fair Admissions organization now says have more than 20,000 members.

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