Parents interested in their children’s future enrollment in the college of their choice will be following the latest cases that have arrived at the U.S. Supreme Court. A group of Asian-Americans has challenged Harvard University’s program of affirmative action that has penalized applicants of Asian descent in violation of Title VI of the Civil Rights Act of 1964. A companion case against the University of North Carolina (UNC) alleges that similar wrongs being committed by that public institution violate the 14th Amendment’s guarantee of equal protection.

Students for Fair Admissions (SFFA) is asking the high court in both cases to overrule its 2003 affirmative action decision in Grutter v. Bollinger. The court has accepted both cases and consolidated them for purposes of oral argument at a future date.

If the court indeed overturns Grutter, it will end almost a half-century of schools being able to consider race as a factor in their admissions policies.

Both lawsuits were filed on the same day in 2014. Harvard won at the trial level and at the 1st U.S. Circuit Court of Appeals, which found that Harvard’s practice of using race as a tiebreaker when considering applicants of similar achievement and background was within the parameters of the Supreme Court’s affirmative action decisions. UNC won at the trial level, and SFFA asked the Supreme Court to accept this case even before the 4th U.S. Circuit of Appeals addressed its appeal, which the high court has now done.

Since both cases are so similar, I’ll simply use Harvard’s circumstances to continue explaining what’s at stake.

Title VI of the 1964 Civil Rights Act states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

In 1978 the first affirmative action case reached the Supreme Court. In Regents of the University of California v. Bakke, a 5-4 majority ruled that although quotas for certain races are forbidden, the use of race among many criteria for admissions was permissible.

In 2003, the high court again revisited affirmative action in student admissions in Grutter v. Bollinger, and in a 5-4 decision ruled once again that race could be used to favor “underrepresented minority groups.” The court also heard and approved racial preference policies at the University of Texas/Austin in a pair of cases decided in 2013 and 2016.

But the timing of the Harvard and UNC cases is fortuitous for those who suggest that the court’s current conservative 6-3 majority puts affirmative action on the court’s chopping block. Since the last affirmative action case was decided in 2016 three new justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – have all joined the court, whose conservative judicial philosophies may tip these cases in favor of ruling that affirmative action violates the Constitution and/or Title VI.

“It is a sordid business, this divvying us up by race,” SFFA’s initial brief to the justices last February opens with, quoting Chief Justice Roberts in a 2006 case about racial preferences relating to public school attendance in Seattle. The pitch to Roberts is purposeful; he has been adamantly opposed to affirmative action.

And there’s a dark underbelly to college admissions policies. Harvard’s long history with “personalized” admissions criteria reveals its discriminatory underpinnings, according to SFFA.

“For much of its existence, Harvard admitted students who passed a required exam. In the early 1920s, however, Harvard’s leaders became alarmed by the growing number of Jewish students who were getting in. Although Harvard ‘prefer[red] to state frankly’ that it was ‘directly excluding all [Jews] beyond a certain percentage,’ it recognized that an explicit quota would ‘cause at once some protest’” (citations omitted), SFFA’s brief states.

“Harvard thus created a holistic admissions system to ‘reduce the number of Jews.’ Instead of test scores alone, Harvard placed ‘greater emphasis’ on ‘character,’ ‘fitness,’ and other subjective criteria. By making its admissions priorities ‘less obvious,’ Harvard believed it could hide its true motives. Harvard could say that race was ‘part of the record,’ but not ‘the whole record,’ so no student would ever ‘be kept out on grounds of race.’”

And 100 years later, Harvard is still using its vague admissions criteria to achieve the racial balances it wants, according to SFFA.

Harvard allegedly discriminates against Asian-American applicants through the use of “personality ratings” that stereotype those applicants as dull, less likeable, and less kind. Harvard counters that it is attempting to create a diverse student body that will enrich the entire class.

However, but for those “personality ratings,” Asian-American enrollment at Harvard would increase by 11%.

Does the 14th Amendment’s guarantee of equal protection, or Title VI of the Civil Rights Act, forbid such considerations, especially if they are disguising discrimination? We’ll soon find out. We’ll update you when the court sets a time for oral arguments.

The cases are Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina.


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