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Biden administration backs Harvard, urges Supreme Court not to take affirmative action case

The US Supreme Court building in Washington, D.C.Stefani Reynolds/NYT

Responding to a request from the US Supreme Court, the Biden administration has weighed in on Harvard University’s use of race in admissions decisions as the high court decides whether or not to take up a case challenging the policy.

The Justice Department filed a brief Wednesday giving its support to the Ivy League school, recommending that the court reject the case filed by a group that argues Harvard’s policies discriminate against Asian American applicants and violate federal civil rights law.

In a brief filed by Solicitor General Elizabeth B. Prelogar, the government argued that lower courts had applied precedent correctly in denying a petition filed by the anti-affirmative action group Students for Fair Admissions and that the Supreme Court should not review the case.

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“The district court determined that ‘Harvard’s admissions process survives strict scrutiny’ because it is ‘narrowly tailored to achieve diversity and the academic benefits that flow from diversity,’ " the brief said. “The court found that ‘Harvard’s admissions program intends to treat every applicant as an individual’; that Harvard ‘does not employ a race-based quota’; and that Harvard had neither target numbers for particular races nor predetermined ranges of permissible fluctuation.”

An appeals court affirmed the district court’s ruling “that Harvard does not use race mechanically” but considers race as one among many factors that can increase a candidate’s likelihood of acceptance, much like provisions for the children of faculty and for “legacy” applicants, according to the brief.

Government lawyers pointed to the landmark 2003 case Grutter v. Bollinger, in which the Supreme Court ruled that a law school could consider race in admissions because it had a compelling interest to seek the educational benefits that a diverse student population creates.

“The [appeals] court noted that the effects of Harvard’s use of race in increasing the percentage of African-American and Hispanic admitted students at Harvard were smaller than the corresponding effects of the program this [Supreme] Court upheld in Grutter,” the brief said.

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Government lawyers also said the Supreme Court should reject the student group’s request that the court consider overruling its past decisions in Grutter v. Bollinger and other affirmative action cases, saying the group “cannot justify that extraordinary step.”

The government argued that Students for Fair Admissions had no legal basis for seeking Supreme Court review of the case, but instead “seeks to relitigate for a third time case-specific factual disputes that both lower courts resolved against it.”

Harvard said Wednesday that it “strongly agrees” with the brief’s arguments “that neither the district court’s factual findings, nor the court of appeals’ application of the Supreme Court’s precedents to those findings, warrant further review.”

“The United States rightly reaffirms that all universities, including Harvard, should have the freedom and flexibility to consider race, as one factor among many, to create the diverse campus communities essential to their educational missions and to the success of their students in the workplace and the world,” the Cambridge-based university said in a statement. “Now is not the time to reverse the unequivocal decisions of two federal courts reinforcing 40 years of Supreme Court precedent.”

Edward Blum, president of Students for Fair Admissions responded that, “The solicitor general’s brief regrettably advocates for the continuation of racial classifications and preferences in college admissions—a position that nearly three out of four Americans of all races oppose. It is to be hoped that the Supreme Court accepts the Harvard and University of North Carolina cases and ends the polarizing, unfair and unconstitutional use of race in college admissions.”

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The group initially sued Harvard in 2014, alleging that the university gave Asian-American applicants lower personal scores on traits such as kindness and leadership and offered unfair preferences to Hispanic, Black, and white applicants.

On the same day, Students for Fair Admissions also sued the University of North Carolina Chapel Hill over its use of race in admissions. UNC-Chapel Hill won that case in October. Last month, the students group asked the Supreme Court to hear the UNC and Harvard cases together.

The Trump administration had backed Students for Fair Admissions in its lawsuit against Harvard.

Material from past Globe stories was used in this report.


Jeremy C. Fox can be reached at jeremy.fox@globe.com. Follow him @jeremycfox.