Supreme Court Tories May Have Opportunity To End Affirmative Action In Universities


The Justice Department on Wednesday evening asked the Supreme Court to dismiss the case against Harvard. The United States Solicitor General Elizabeth Prelogar’s office file highlighted that lower courts in the United States had thoroughly examined Harvard’s racial admissions practices and found them limited enough to respond to court precedents. supreme, because they reinforced the school’s interest in campus diversity.

The race-sensitive admission practices of students, first confirmed in a 1978 Supreme Court decision and reaffirmed in 2003, have boosted the admission of black and Latino students for decades. Proponents argue that such diversity improves campus life and the educational mission.

But judges like Sandra Day O’Connor and other centrist-conservatives have been replaced by a new generation of more conservative Republicans. The writings of several judges in the current conservative majority suggest they would be ready to tackle the racist dispute and possibly change the look of college enrollments across the country.

The court had postponed its consideration of the Harvard case pending advice from the Office of the Solicitor General of the United States. The nine judges are now expected to meet in January to decide whether to accept the challenge, presented by the Students for Fair Admissions group.

Judges already have a busy schedule of cultural warfare issues, including abortion rights, gun control, and the separation of church and state. Based on the arguments in these cases, Americans can move towards a radical change in individual rights and civil liberties.

With such important cases on their agendas and only a few more weeks to schedule this spring’s pleadings, the judges, if they accept the Harvard case, could suspend pleadings until October 2022, when. which the next session of the tribunal will begin. .

Radical change in the composition of the tribunal

Students for Fair Admissions maintains that Harvard engages in “racial balancing” in its admissions practices. In the 2014 case, he argues that the Ivy League campus imposes higher standards on Asian Americans and limits their numbers, in violation of Title VI of the 1964 Civil Rights Act, which prohibits schools receiving federal funds from discriminating on the basis of race.

Since the trial began seven years ago, the composition of the Supreme Court has changed to benefit opponents of affirmative action, with three new appointments for former President Donald Trump. The court last upheld affirmative action in 2016, in a dispute over the University of Texas at Austin.

The Harvard trial was organized by a conservative activist, Edward Blum, who successfully tackled the racial challenge that led to the landmark Shelby County v. Holder in 2013 which overturned a major provision of the voting rights law.

From the start, Blum and the conservative supporters who joined him sought to have the Supreme Court overturn Supreme Court decisions of 2003 (Grutter v. Bollinger) and 1978 (Regents of the University of California v. Bakke) allowing race to be one of many factors in selecting students for a place on campus.

When the Supreme Court in 2003 reaffirmed Bakke, Justice O’Connor, now retired, emphasized a university’s mission to train future leaders and wrote: “The effective participation of members of all groups racial and ethnic to the civic life of our nation is essential if the dream of a nation, indivisible, is to be realized.

But the court has changed dramatically since then. Roberts wrote, “This is a sordid business, it divides us by race,” and “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Two of the majority who upheld the racist confession the last time such a case was heard, in 2016, were Anthony Kennedy and Ruth Bader Ginsburg, succeeded by Brett Kavanaugh and Amy Coney Barrett, respectively.

The court had only seven judges left for this 2016 Texas controversy. Judge Antonin Scalia had just died and Judge Elena Kagan recused herself due to her involvement in the litigation before becoming a judge.

Roberts and Justices Clarence Thomas and Samuel Alito disagreed with the 4-3 decision upholding state university’s racial criteria.

Thomas, whose influence has grown in recent years with new Trump appointees, wrote a separate dissenting statement outlining his opposition to any state use of race in higher education admissions.

“The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant for the granting of office or benefit, it demeans us all,” Thomas wrote. “This constitutional imperative does not change in the face of a ‘buzzword’ that racial discrimination can produce ‘educational benefits.’ The Court was wrong to conclude otherwise in Grutter v. Bollinger.”

Harvard Admission Rules

Harvard, which has urged judges to dismiss the new appeal, retorts that it does not set any number for racially-linked students and that all applicants are considered individually based on many characteristics.

A U.S. district court judge ruled in 2019 against the SFFA after a three-week trial a year earlier. Last year, the U.S. 1st Circuit Court of Appeals upheld the ruling, ruling Harvard’s practices were legal under Supreme Court precedent and did not discriminate against Asian American students.

Students for Fair Admissions also sued the University of North Carolina for its admissions practices. This case, which the SFFA lost at trial, has yet to be heard by a US appeals court. But the SFFA urged judges to hear the case, even without an appeal judgment, as well as the ongoing Harvard controversy. (The state university lawsuit raises a Title VI claim, as well as one under the 14th Amendment guarantee of equal protection of the laws.)

In its Wednesday brief, the Justice Department highlighted the decades-long dependence of public and private universities across the country on affirmative action since the 1978 Bakke decision, and the disruption that would result from it. ‘a re-examination of precedents.

The Justice Department urged the court to dismiss the challengers’ request to reconsider the last major affirmative action high court approval, in the 2003 University of Michigan case known as Grutter v . Bollinger.

Referring to the tradition of joining the precedent, known as stare decisis, Prelogar wrote: Colleges and universities across the country – strongly support membership in Grutter. ”

The Biden administration’s record contrasts with the position of the Trump administration, which had backed the Harvard challengers at an earlier stage in the long-standing litigation.

Harvard attorneys, urging justices to leave their victories in lower courts, noted that there is no division in the larger legal question between U.S. appellate courts, which typically prompts the Supreme Court to hear, publish and clarify the law.

Harvard maintains that it views race “only in a flexible, non-mechanical way” and that such consideration “only benefits highly qualified candidates.”

The SFFA challenge was filed by the law firm Consovoy McCarthy, which is run by lawyers who were paralegals to Thomas and other conservative jurists and who represented Trump in some litigation during his tenure.

He argues that high court rulings allowing race to be a “plus” in screening have become “a minus for Asian Americans.” Asian American applicants were penalized in a process that classified them as “smart, one-dimensional books.” Lower court judges dismissed the claim because they ruled Harvard did not unlawfully discriminate.

Blum, a longtime opponent of racial policies, had previously enlisted white students to challenge affirmative action policies, as he had done in the case of the University of Texas. (White college student Abigail Fisher lost this case.)

In the Harvard litigation, no Asian-American plaintiff was named. Asian-American lawyers were divided in their response to the trial in the early stages of the litigation, with some supporting, others opposed. The community itself is diverse, tracing its heritage to different countries and experiencing different social and economic perspectives in the United States.


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