- The Washington Times - Tuesday, June 15, 2021

The Supreme Court could decide the legality of affirmative action during its next term, announcing Monday the justices want the Biden Justice Department to weigh in on a case against Harvard College’s admission policy. 

The case, Students for Fair Admissions Inc. v. President and Fellows of Harvard College, is pending before the court after the organization asked for the justices to hear arguments that the ivy league school discriminates against Asian American students on the basis of race, saying the school prefers to admit underrepresented minorities.

Lower courts ruled against Students for Fair Admissions, but earlier this year the group asked the high court to reconsider. 

The organization charges in court papers that Harvard penalizes highly qualified Asian American students because “they lack leadership and confidence and are less likable and kind.” In the group’s filing, they argue Harvard uses race during every part of the admissions process, including while recruiting high school graduates. 

“Harvard’s mistreatment of Asian-American applicants is appalling,” the filing reads. 

Edward Blum, president of Students for Fair Admissions, said he anticipated the high court would request the view of the solicitor general in the case. 

It’s not an unusual move for cases, especially after a change in administrations. 

“Students for Fair Admissions hopes the justices will grant our petition and end race-based affirmative action in college admissions,” Mr. Blum told The Washington Times. 

But if the high court were to take the case, it could have nationwide implications if the justices strike down Harvard’s policy.

“It would be a big deal because of the nature of college admissions across the country and because of the stakes of having this issue before the Supreme Court,” Gregory Garre, who defended the University of Texas’ admissions policy before the justices in the past, told The Associated Press. 

Court watchers predict it’s unlikely for the acting Solicitor General Elizabeth Prelogar from the Biden Justice Department to file a brief before this term ends later this month and anticipate it will come in the fall. The justices break for a summer recess from July to October. 

A spokesperson from Harvard did not immediately respond to a request for comment about the high court’s request of the Biden administration to weigh in.

In court papers, the school discouraged the high court from hearing the case, arguing the trial court conducted a three-week trial and concluded the school doesn’t discriminate against Asian Americans. 

“Harvard does not automatically award race-based tips but rather 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,” the college wrote in its brief.

Legal scholars predict the Justice Department is likely to argue for Harvard’s admission standards because it withdrew a case earlier filed by the Trump administration against Yale University’s admissions policy, saying it discriminated against White and Asian American students.

It only takes four justices to agree to hear a case, and Richard Sander, a professor at UCLA School of Law, said there were at least three of the court’s members who disagreed with upholding affirmative action policies when the court last considered a challenge just five years ago.

The court upheld the University of Texas’ policy in a 4-3 ruling in 2016. Chief Justice John Roberts Jr., Justice Samuel A. Alito, and Justice Clarence Thomas dissented. 

With the court’s new makeup in recent years and three new Trump appointees, Chris Haynes, a professor at the University of New Haven, said there could be some interest among the bench in hearing the arguments. 

“They might see this as an opportunity to cement some legacy there and change this law,” he said. 

But the justices could also be punting the case into the next term. 

“You can just look at the makeup of the court and assume they will take the case eventually,” Mr. Haynes said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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