Another race case knocks on the U.S. Supreme Court’s door

Although the U.S. Supreme Court’s term has not ended, its next term is already shaping up as a potential blockbuster with challenges on abortion and guns to be argued and decided. If the justices add a case involving race, as many expect, the term will be a triple threat.

The race case that many are watching is Students for Fair Admissions v. Harvard College. The justices are expected to take their first look at the case during a private conference this week.

Students for Fair Admissions, an organization created by longtime affirmative action foe Edward Blum, contends that Harvard is violating Title VI of the Civil Rights Act of 1964 by penalizing Asian-American student applicants through its consideration of race in the admissions process. Title VI prohibits discrimination on the basis of race, color or national origin by any program or activity receiving federal funds.

This anti-affirmative action case does have something in common with next term’s anti-abortion challenge, Dobbs v. Jackson Women’s Health Organization. In both cases, the challengers ask the court to overturn longstanding prior decisions.

In Dobbs, the state of Mississippi says the landmark abortion ruling, Roe v. Wade, nearly 50 years old, should be overturned if it stands in the way of the state’s claim to regulate pre-viability abortions. And in the Harvard case, the challengers urge the court to throw out Grutter v. Bollinger, a 2003 decision with roots in another court precedent dating to 1978.

The Grutter case involved a challenge by a white applicant denied admission to the University of Michigan Law School. She claimed the law school discriminated against her on the basis of race in violation of the 14th Amendment and Title VI.

In a 5-4 decision written by Justice Sandra Day O’Connor, the majority rejected Grutter’s claim. It ruled that student body diversity is a compelling state interest that can justify the consideration of race in university admissions. But universities cannot get to that diversity by seeking a particular number or quota of minority students.

The justices have fleshed out that ruling somewhat in more recent decisions involving race in college admissions policies. The college’s use of race must be narrowly tailored to achieve that student body diversity and the college must show there are no workable and available race neutral alternatives.

The court’s most recent college affirmative action challenge was in 2016 in Fisher v. University of Texas at Austin. A 4-3 majority, led by Justice Anthony Kennedy, ruled that the university’s race-conscious admissions program was constitutional.

In the pending case against Harvard, the challengers claim that Harvard uses race at every stage of its admissions process.

“To begin, Harvard recruits high-school students differently based on race,” the organization claims. “African-American and Hispanic students with PSAT scores of 1100 and up are invited to apply to Harvard, but white and Asian-American students must score a 1350. In some parts of the country, Asian-American applicants must score higher than all other racial groups, including whites, to be recruited by Harvard.

The challengers also contend that Harvard admits Asian Americans at lower rates than whites, even though Asian Americans receive higher academic scores, extracurricular scores, and alumni-interview scores. And Asian Americans receive the lowest personal ratings among all races.

After a lengthy trial, a federal district judge, in a 130-page opinion rejected the challengers’ claims. The judge found “no evidence of any racial animus whatsoever or intentional discrimination,” and no “evidence that any particular admissions decision was negatively affected by Asian American identity.” A federal appellate court subsequently upheld the district judge’s decision.

In the Supreme Court, Harvard urges the justices to deny review. The college contends that it “considers race only in a flexible and nonmechanical way; consideration of race benefits only highly qualified candidates; and Harvard does not discriminate against Asian-American applicants.”

Only two justices remain on the court from the Grutter decision in 2003: Justice Clarence Thomas, who dissented, and Justice Stephen Breyer who joined the majority decision.

And much has changed on the Supreme Court in just the five years since its last college affirmative action case. Justice Anthony Kennedy, author of the University of Texas ruling, has retired, and Justice Ruth Bader Ginsburg, in the majority, has died. The views of the newest justices—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—are untested. The court also has a 6-3 conservative majority.

Affirmative action or race preferences have been part of the nation’s fabric for many years now but narrowed considerably by Supreme Court rulings, legislation and voter referenda.

If the justices agree to review the Harvard challenge, the issue will undoubtedly be controversial – and divisive--again.

In the 2016 University of Texas case, Justice Thomas wrote that he would overrule Grutter, the 2003 University of Michigan Law school decision. Thomas, himself a beneficiary of affirmative action in his Yale Law School admission, has written that all race preferences are per se harmful. He wrote in Grutter:

"The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

But Justice Sonia Sotomayor, who has said she benefitted from affirmative action in her admission to Princeton University and Yale Law School, recently offered a contrasting view.

“It is very hard for someone like me, who has been a recipient of affirmative action to naysay its importance. As I say in my book, if not for affirmative action, would the doors at Yale and Princeton have opened to accept someone like me? I certainly wasn't adequately trained in the way my classmates were. But affirmative action let Princeton and Yale look at my promise and to see enough was there to give me the opportunity. The question is not how you get in, but what do you do with it when you get in.”

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.