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Judges defer Harvard case on race in college admissions | Massachusetts News

By MARK SHERMAN, Associated Press

WASHINGTON (AP) — With abortion and guns already on the agenda, the conservative-dominated Supreme Court is considering adding a third blockbuster question — whether to ban consideration of race in college admissions.

Judges on Monday postponed a decision on whether they would hear an appeal alleging that Harvard discriminates against Asian American applicants, in a case that could have nationwide repercussions. The court asked the Justice Department to rule on the case, a process that typically takes several months.

“It would be a big deal because of the nature of college admissions across the country and because of the stakes of taking this to the Supreme Court,” said Gregory Garre, who has twice defended the program. admission from the University of Texas before the judges.

The presence of three appointees by former President Donald Trump could prompt the court to take up the case, even though it has only been five years since its last ruling in a higher education affirmative action case.

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In this Texas case, the court reaffirmed in a 4-3 decision that colleges and universities can consider race in admissions decisions. But they must do so in a narrowly tailored way to promote diversity, the court said in a ruling that dismissed claims of discrimination by a white candidate. Schools also have a responsibility to show why their consideration of race is appropriate.

Two members of this majority of four judges left the court. Judge Ruth Bader Ginsburg died in September. Justice Anthony Kennedy retired in 2018.

The three dissenters in the case, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, remain on the court. Roberts, a moderating influence on some issues, has been a consistent vote to limit the use of race in public programs, once writing, “It’s a sordid business, it divides us by race.”

The court’s willingness to engage in major abortion and gun rights cases also appears to rely on the court’s new, more conservative makeup, as similar appeals have been dismissed in the past.

Like the abortion case, the Harvard case is not split between the appellate courts, often prompting high court interest in a case.

The Supreme Court has ruled many times on college admissions for over 40 years. The current dispute dates back to his first major affirmative action case in 1978, when Judge Lewis Powell laid out the reasons for considering race even as the court banned the use of racial quotas in admissions.

In Regents of the University of California v. Bakke, Powell cited Harvard approvingly as “an illuminating example” of a college taking “race into account to achieve the educational diversity valued by the First Amendment.”

Twenty-five years later, Judge Sandra Day O’Connor also cited the Harvard plan in her opinion upholding the University of Michigan Law School Admissions Program.

Now it is the Harvard program in the crosshairs of opponents of race-based affirmative action.

The Harvard Challenge is led by Edward Blum and his students for Fair Admissions. Blum has worked for years to rid college admissions of racial considerations.

The group says Harvard imposes a “racial sanction” on Asian American applicants by consistently ranking them lower in certain categories than other applicants and giving “massive preferences” to black and Hispanic applicants.

Harvard categorically denies that it discriminates against Asian American applicants and says its consideration of race is limited, pointing out that lower courts agreed with the university.

In November, the federal appeals court in Boston ruled that Harvard was looking at race in a limited way, consistent with Supreme Court precedents.

The class that just completed freshman year is made up of about a quarter Asian American, 15% black and 13% Hispanic, Harvard says on its website. “If Harvard were to drop race-conscious admissions, African-American and Hispanic representation would drop by nearly half,” the school told the court, urging it to stay out of the case.

The Trump administration backed Blum’s case against Harvard and also filed its own lawsuit alleging discrimination against Asian Americans and whites at Yale.

The Biden administration has already dropped Yale’s lawsuit and will almost certainly take Harvard’s side in the Supreme Court if the case proceeds.

The lead appeals attorney is William Consovoy, who also represented Trump in his unsuccessful attempt to shield his tax returns from the Manhattan prosecutor.

When the court upheld the Michigan Law School program in Grutter v. Bollinger in 2003, O’Connor took note of the quarter century that had passed since the Bakke decision.

“We anticipate that in 25 years the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote.

O’Connor’s timeline set 2028 as the potential end point for racial preferences. A more conservative court than the one she sat on could move that expiration date forward by several years.

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