The Supreme Court adds affirmative action to its potential hit list

The Supreme Court said Monday it will revisit the question of affirmative action in higher education, deciding to hear cases challenging the use of race as one factor in admissions at Harvard University and the University of North Carolina.

With the court already having heard arguments this term on abortion and guns, the affirmative action cases mark yet another politically charged issue that threatens to uproot decades of legal doctrine. Arguments in the two cases will likely be heard in the court's new term, which begins in October.

The court will consider more than just the details of how Harvard and UNC operate their affirmative action programs. It will also reexamine 43 years of precedent by asking whether race can ever play a role in admissions.

Both cases were filed on the same day, back in 2014, by the conservative activist group Students for Fair Admissions. The suits claimed that Harvard and UNC impermissibly used race in their admissions processes and discriminated against Asian Americans.

Starting in 1978, the Supreme Court has upheld the constitutionality of affirmative action programs three times. In each, the court's controlling opinion was authored by a traditionally conservative justice. But all of those justices have retired or died, and 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 now have been joined by three Trump-appointed conservatives.

When it comes to affirmative action, Harvard's program has long been a constitutional model cited by the court in dealing with programs at other schools.

Now that Harvard must defend its own policies, the school says it treats every applicant as an individual and looks only at race as one small piece in a holistic picture of the student. But some Asian American students who were denied admission counter that Harvard's defense amounts to subterfuge. They allege that Harvard effectively used racial quotas and discriminated against Asian Americans.

The district court, however, found scant evidence to support those claims, and in November 2020 an appeals court agreed. In their appeal to the Supreme Court, Students for Fair Admission asked justices to erase affirmative action altogether.

In the UNC case, the organization skipped over the usual step of going to the appeals court and instead appealed directly to the Supreme Court, which agreed on Friday to consider the case as a companion to the Harvard case.

The main difference between the cases is that UNC is a state school and, as such, is subject to constitutional constraints that Harvard is not. Still, Harvard must comply with federal civil rights laws, which prohibit discrimination on the basis of race. By accepting both cases, the court can consider whether that public vs. private distinction matters for affirmative action.

The man behind these suits and others like it is Edward Blum, a conservative legal movement unto himself. The former financial adviser and onetime failed congressional candidate has been the driving force behind cases opposing affirmative action for years.

Prior to that, Blum also spearheaded attacks on the 1965 Voting Rights Act, culminating in the court's 2013 decision in Shelby County v. Holder, essentially gutting the law.

He has been similarly undaunted in his attacks on affirmative action. After the court rejected Blum's challenge to the affirmative action policy at the University of Texas in 2016, he retooled his strategy, this time taking aim at Harvard and claiming that high-achieving Asian American students were being denied admission because of race.

Though he initially struggled to get Asian American students to join his suit — he filed the lawsuit before actually finding any — his organization, Students for Fair Admissions, now says it has 20,000 members. It is unclear, though, how many of those members are Asian Americans. Blum says only that there are now "dozens and dozens" of them, though he doesn't know how many because the organizations doesn't ask the race of its members.

He notes, correctly, that polls conducted by Pew and Gallup have found that nearly 3 out of 4 Americans are opposed to the use of race in college admissions, and that number, he observes, includes, "majorities of Hispanics, majorities of African Americans and majorities of Asian."

However, most major Asian American student organizations have opposed his position.

UCLA professor Mitchell Chang, who testified as an expert witness in the UNC case, observes that the stereotypical vision of an Asian student working harder than other students has some merit, but largely for first-generation students whose families have immigrated to the United States.

He points to Asian American groups that have been in the U.S. for a longer period — Japanese Americans, for example. "If you look at their academic records, they tend to be more like whites than their first-generation American counterparts," he says.

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