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Supreme Court may consider Harvard case on race in college admissions

A pedestrian passed an entrance to Harvard Yard on Massachusetts Ave in Cambridge.Craig F. Walker/Globe Staff/file

The US Supreme Court is expected to reveal soon whether it plans to take up the topic of race in college admissions, an issue the justices would revisit if they agree to hear an appeal claiming that Harvard University discriminates against Asian American applicants.

The court’s decision on whether to hear the case could come as soon as Monday. Four justices must agree before the case is taken up by the full court. If the justices opt to intervene, arguments would be held in the fall or winter.

The latest high-profile challenge to the use of affirmative action in college admissions was brought by the group Students for Fair Admissions, which sued Harvard in 2014 and claimed the school gave Asian American applicants lower personal scores on traits such as kindness and leadership, and offered unfair preferences to white, Hispanic, and Black applicants.

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The organization is led by Edward Blum, who has worked for years to rid college admissions of racial considerations and also challenged affirmative action on behalf of white students. The group asked the justices in February to review the Harvard case.

In an e-mail Sunday night, Blum said he believed the court was likely to make its decision known near the end of June.

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.

Last month, Harvard urged the Supreme Court to reject the case, saying that allegations that the school discriminates against Asian American applicants and significantly factors race into its admissions decisions lack merit.

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“After years of discovery, SFFA produced no persuasive evidence to support its legal claims,” Harvard said in a statement released on May 17, the day the school filed a brief opposing the request to have the case reviewed by the Supreme Court. “SFFA is not entitled to battle out the facts a third time in this Court. And it identifies no unsettled legal issue meriting review.”

If Harvard stopped considering race in admissions, Black student enrollment would decline from 14 percent to 6 percent, and Hispanic student enrollment would decline from 14 percent to 9 percent, the college said in its filing.

Harvard didn’t respond Sunday to a request for comment.

The case has been brought under the Title VI statute, which bars any program that receives federal money, including colleges, from discriminating on the basis of race, color, or national origin.

The US First Circuit Court of Appeals and US District 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 improved since the 2016 Texas case, when the court reaffirmed in a 4-3 decision that colleges and universities may consider race in admissions decisions.

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Two members of that four-justice majority are gone from the court, which now has a six-member conservative majority. Justice Ruth Bader Ginsburg died in September. Justice Anthony Kennedy retired in 2018.

The three dissenters in the case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain on the court. 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.

The case put Harvard’s famously competitive admissions process under the spotlight, underscoring how money and privilege can also be leveraged to win a seat in the freshman class.

One-third of Harvard’s admitted class is made up of recruited athletes and children of alumni, donors, faculty, or staff, who are disproportionately white and come from higher-income households. And 75 percent of those white students admitted would have been rejected from Harvard without membership in those categories, according to one study.

E-mails released during a three-week federal district court trial in Boston in 2018 also revealed Harvard administrators weighing how much in donations they could potentially receive from families if they admitted certain students.

Since the trial, Harvard has been admitting an overall more diverse class of students, including a greater share of Asian American students.

In 2019, the share of Asian Americans admitted to Harvard increased to 25.4 percent, after hovering around 22 percent for the three previous years. In 2020, the share of Asian Americans dropped slightly to 24.4 percent but the most recently admitted freshman class includes 27.2 percent Asian American students.

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Material from previous Globe coverage and from the Associated Press was used in this report.



Laura Crimaldi can be reached at laura.crimaldi@globe.com. Follow her on Twitter @lauracrimaldi.