Harvard Urges Supreme Court to Back 40 Years of Race in Admissions

Harvard urged the Supreme Court to reject an effort to bar colleges from using race as a factor in admissions, saying the appeal seeks to upend four decades of legal precedent.

“Having failed to make the case that Harvard’s admissions practices contravene the court’s precedents governing the use of race in admissions, SFFA asks the court to overthrow them,” Harvard College said in a brief it filed Monday, referring to Students for Fair Admissions, the group seeking the high court’s review. “But SFFA offers no legitimate justification for such an extraordinary step.”

SFFA’s request comes as the court is likely to be more skeptical of race-conscious admissions than it was in 2003, when it ruled in Grutter v. Bollinger that universities could use race as one factor among many to diversify their student bodies. Chief Justice John Roberts has criticized what he sees as special protections for racial minorities, writing in a 2006 redistricting case, “It is a sordid business, this divvying up by race.”

Harvard Urges Supreme Court to Back 40 Years of Race in Admissions

SFFA, led by the longtime conservative activist and affirmative action foe Edward Blum, sued Harvard in 2014, alleging that it violates federal civil rights laws by intentionally discriminating against Asian-Americans in undergraduate admissions, favoring Black and Hispanic students. A federal judge in Boston ruled for Harvard in 2019, finding there was no evidence that the Ivy League school discriminates on the basis of race or engages in racial balancing or quotas.

An appeals court upheld the decision, and in February SFFA asked the Supreme Court to review the case and to overturn the 2003 Grutter ruling.

In its answer Monday, Harvard said its admissions policies are consistent with decades of Supreme Court precedent that permits the use of race as one factor. It argues the evidence showed it doesn’t automatically award race-based “tips” but rather considers race “in a flexible and nonmechanical way” that benefits “only highly qualified candidates.”

“Unable to seriously challenge the rejection of its claims under existing law, SFFA asks the court to overrule more than 40 years of decisions regarding the limited consideration of race in university admissions,” Harvard argued in its brief. Students for Fair Admissions “recycles allegations both courts rejected and offers a thoroughly distorted presentation of the record,” it said, noting that while SFFA argues Harvard “automatically” awards “enormous” preferences to all African-American and Hispanic applicants, the record from the trial and two court rulings refuted those claims.

“After years of discovery, SFFA produced no persuasive evidence to support its legal claims,” Harvard said. “The court of appeals found no error in the district court’s meticulous explanation of how it resolved the disputed facts and applied the relevant law. SFFA is not entitled to battle out the facts a third time in this court. And it identifies no unsettled legal issue meriting review.”

Blum said race has no business in a college admissions decision.

“The cornerstone of our nation’s civil rights laws is the principle that a student’s race and ethnicity should not be used to help, or harm, their college admissions prospects,” he said in a statement. “It is our hope that the Supreme Court accepts this lawsuit for review and ends the use of race in college admissions at Harvard and all colleges and universities.”

Harvard said in its brief that the case doesn’t merit review because there’s no split among different appeals courts to resolve and no disagreement between U.S. District Judge Allison Burroughs in Boston, who presided over a three-week trial, and the federal appeals court that upheld her decision.

The high court’s Grutter decision upheld a University of Michigan Law School policy that considered race as part of a holistic look at a student’s application. It came a quarter century after the court backed university affirmative action for the first time in its landmark Bakke ruling.

Students for Fair Admissions Inc. v. President and Fellows of Harvard College, No. 20-1199, U.S. Supreme Court.

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