Students for Fair Admissions, which has sued Harvard University over its use of race in college admissions, on Thursday asked the US Supreme Court to review the case.
The suit alleges that Harvard discriminates against Asian-American applicants and gives unfair preferences to white, Hispanic, and Black applicants. Four justices must agree before the case is taken up by the full court.
“After six and one-half years of litigation, the hundreds of Asian-American students who were unfairly and illegally rejected from Harvard because of their race may soon have this lawsuit reviewed by the US Supreme Court,” said Edward Blum, the president of Students for Fair Admissions. “It is our hope that the justices will accept this case and finally end the consideration of race and ethnicity in college admissions.”
The US First Circuit Court of Appeals and US District Court Judge Allison D. Burroughs both have ruled that Harvard did not discriminate against Asian-American applicants and that the school’s use of race in admissions met the requirement of the law.
But Students for Fair Admissions always aimed for this case to reach the nation’s top court in hopes that a more conservative leaning panel of judges would ultimately overturn decades of law that has allowed colleges to consider race in admissions to create more diverse campuses.
The chances of getting a sympathetic ear on the Supreme Court have never been better.
The court now has a six-member conservative majority. Legal scholars have said that if the Supreme Court decides to take up the case, it would send a strong signal that there are enough justices willing to roll back affirmative action.
Harvard said it remains committed to expanding learning opportunities for students and that a diverse campus is essential to the school’s educational mission.
“As earlier court decisions have confirmed, our admissions policies are consistent with Supreme Court precedent,” Rachael Dane, a Harvard spokeswoman, said in a statement. “We will continue to vigorously defend the right of Harvard College, and every other college and university in the nation, to seek the educational benefits that come from bringing together a diverse group of students.”
In Harvard’s 2024 admitted class, Asian-Americans accounted for 24.4 percent of students, Black students make up 14.7 percent, Latinos 12.7 percent, and Native Americans 1.8 percent. About 46 percent of admitted students were white.
Students for Fair Admissions has alleged that Harvard’s admissions staff consistently gave low scores to Asian-American applicants on personal traits, such as kindness and leadership, which are part of the review process for admission.
In its Supreme Court filing, Students for Fair Admissions specifically attacked a 2003 court decision that allowed colleges to use race as a factor in admissions to achieve diversity, as long as it was narrowly tailored. That has essentially remained the law, even as recently as 2016 when a Blum-backed effort to challenge affirmative action at the University of Texas at Austin fell short.
But Students for Fair Admissions said that 2003 decision was “grievously wrong” and should be overturned.
“Overruling precedent is always serious,” the organization said in its court petition. “This case is the kind of important individual rights dispute that this court has not hesitated to hear. Review thus would be warranted if the defendant were any university . . . But it isn’t just any university. It’s Harvard. Harvard has been at the center of the controversy over ethnic- and race-based admissions for nearly a century.”
Jonathan Feingold, an associate law professor at Boston University, said that while SFFA has alleged that Harvard discriminates against Asian-American applicants, the remedy the organization is seeking — getting rid of affirmative action — wouldn’t address the problem.
Harvard has said that eliminating race-conscious admissions would dramatically decrease the share of Black and Latino students on campus, significantly boost the share of white students, and only slightly increase Asian-American admissions.
“What they’re asking the court to do is radical,” Feingold said. “There’s no reason to believe that the [alleged] anti-Asian bias will be cured by eliminating affirmative action.”
Students for Fair Admissions hopes to have a decision from the Supreme Court about whether it will hear the case by late spring, but it may not happen until October, Blum said.
The organization did try to appeal to both Chief Justice John Robertsand Justice Clarence Thomas in the filing’s opening paragraph, quoting their previous skeptical statements about race-conscious laws.
But Feingold said the court could choose to pass on the Harvard case, because it involves a private university instead of public institution. Students for Fair Admissions also has a lawsuit against the University of North Carolina Chapel Hill that is making its way through the courts. That case could offer a less complicated opportunity for the justices to overturn affirmative action, he said.
On Thursday, Students for Fair Admissions also filed a separate lawsuit against Yale University alleging that the school discriminates against Asian-American applicants. The organization had tried to join a previous case brought by the Trump administration Justice Department against Yale, but the federal district court denied that request. Soon after President Biden took office, the Justice Department dropped its lawsuit against Yale.
There are likely to be other opportunities to do away with affirmative action in college admissions, but it depends on “how patient” the justices are willing to be, Feingold said.