The Supreme Court on Monday called on the U.S. Department of Justice (DOJ) to weigh in on whether to take up a discrimination case brought against Harvard University over the Ivy League school’s “race-conscious” admissions policy.
In an unsigned order, the Supreme Court requested the acting solicitor general, Elizabeth Prelogar, “to file a brief in this case expressing the views of the United States.”
The dispute was first raised in 2014 by advocacy group Students for Fair Admissions (SFFA), on behalf of a coalition of students who claimed to have been rejected from Harvard because of their Asian ancestry—a violation of Title VI, the federal law prohibiting racial discrimination in education programs that receive federal funding.
The DOJ under the Trump administration backed the suing students. It also waged a separate lawsuit against Yale University over alleged discrimination against white and Asian-American applicants in its admissions process, but dropped the suit shortly after the Biden administration took office.
In 2020, the Court of Appeals for the 1st Circuit uphold a lower court decision that Harvard’s admissions policy was consistent with Supreme Court precedents, prompting the SFFA to reignite the legal battle in the highest court.
“Harvard’s mistreatment of Asian-American applicants is appalling,” the SFFA argued in a Feb. 25 petition calling on the Supreme Court to review the case. “Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less likable and kind. This is reason enough to grant review.”
“This case is the kind of important individual rights dispute that this Court has not hesitated to hear,” it added. “Review thus would be warranted if the defendant were any university subject to Title VI. 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.”
In response, Harvard on May 17 filed to the Supreme Court a Brief in Opposition (pdf) to the SFFA’s request, arguing that the group failed to offer any valid reason to revisit the lower court ruling.
In 2019, a Boston-based federal judge rejected SFFA’s bid, finding Harvard’s admissions program lawful. That decision was affirmed by the Court of Appeals for the 1st Circuit, prompting SFFA’s appeal to the Supreme Court.
“Having failed to make the case that Harvard’s admissions practices contravene the court’s precedents governing the use of race in admissions, SFFA asks the court to overthrow them,” Harvard argued. “But SFFA offers no legitimate justification for such an extraordinary step.”
The university also accused the SFFA of trying to undermine its efforts to make its student population racially diverse, saying that a race-neutral admissions policy would hurt the already underrepresented black and Hispanic students.
“If Harvard were to abandon race-conscious admissions, African-American and Hispanic representation would decline by nearly half,” the court filing reads. “Such declines would seriously undermine Harvard’s educational goals, and even SFFA’s expert agreed such declines would be unacceptable.”
If four or more justices vote to revisit the issue, then arguments will likely be heard this fall, with a decision by summer 2022.