The Supreme Court on Monday asked the Biden administration to weigh in on a challenge to Harvard University’s use of race in college admissions. The move effectively defers, at least for a few months, a high-stakes case aimed at ending an effort by colleges to make their campuses more racially diverse.
After a private conference last week on whether to take up the case, the court asked the acting solicitor general to give the administration’s opinion on the case. Legal experts expect the Biden administration to file its view in the fall, with a decision from the Supreme Court on whether to take the case later this year.
The Trump administration had backed Students for Fair Admissions in its lawsuit against Harvard alleging that the university discriminated against Asian-American applicants in its use of affirmative action in college admissions. Legal experts expect the Biden administration to take the opposite view and to more broadly defend the use of race in college admissions.
It is unclear how much of an influence the Biden administration’s perspective will have on the final court decision.
“Students for Fair Admissions remains hopeful that, regardless of the views of the solicitor general, the justices will grant to hear our case and end race-based affirmative action in college admissions,” said Edward Blum, the leader of the anti-affirmative action group.
Harvard declined to comment on the case.
Monday’s Supreme Court request does show how complex this case is, said Art Coleman, a former deputy assistant secretary at the US Department of Education’s civil rights office during the Clinton administration.
“It reflects that whether to take the case or not remains a close — and probably — contentious question for the court,” Coleman said.
Many colleges and affirmative action advocates have feared that with a 6-3 conservative majority on the bench, the Supreme Court may be ready to overturn the use of race in college admissions and reverse decades of precedent.
In previous cases over the past 40 years, the Supreme Court has reined in, but ultimately allowed colleges to use race in admissions as long as it is one of many factors. A 1978 Supreme Court decision on affirmative action specifically cited Harvard’s undergraduate admissions process as an example of how race can be permissibly used to build a freshmen class.
Lower courts have backed Harvard’s use of race in admissions and said that the college’s practices are in line with current law.
Unlike previous affirmative action challenges, which have been brought on behalf of white students, the Harvard case centers around whether Asian-American students are discriminated against because of affirmative action policies.
Students for Fair Admissions sued Harvard, alleging that the Ivy League college gave Asian-American applicants lower personal scores on traits such as kindness and leadership and offered unfair preferences to Hispanic, Black, and white applicants.
Blum, who leads Students for Fair Admissions, has challenged affirmative action on behalf of white students in the past.
In its filing with the Supreme Court, Students for Fair Admissions not only alleged that Harvard’s admissions policies were discriminatory toward Asian-Americans, but attacked a 2003 court decision that has allowed colleges to use race as a factor in admissions to achieve diversity, as long as it was narrowly tailored. The organization called the 2003 decision, “grievously wrong” and argued it should be overturned.
Harvard has argued that the use of race in college admissions has transformed campuses into more diverse learning environments and that the work is incomplete.
“Prohibiting consideration of race now would lead to substantial declines in diversity on many campuses, with significant adverse effects on the educational experiences of all students,” Harvard said in its filing.
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.
After the case went to trial, the share of Asian-American students admitted into Harvard increased to 25.4 percent in 2019, after hovering around 22 percent for the three previous years. The most recent admitted freshman class includes 27.2 percent Asian-American students.
Legal experts have suggested that the Supreme Court may be hesitant to use the Harvard case to overturn affirmative action because it involves a private university, which generally has more leeway to set its admissions criteria.
Students for Fair Admissions has also sued the University of North Carolina Chapel Hill over its use of race in admissions. That case went to trial last fall, but a federal judge has yet to issue a ruling. If the Supreme Court decides against hearing the Harvard case, the UNC Chapel Hill challenge offers affirmative action opponents another opportunity to overturn the law.