Affirmative action at risk; Supreme Court wants to hear from the Biden administration on the Harvard admissions complaint

Asian Americans demonstrate in front of the U.S. Supreme Court Building.

ANALYSIS

The U.S. Supreme Court's action asking for the opinion of the Biden administration on the Harvard admissions case may indicate that the justices are unsure if the case merits a ruling from the nation's high court.

Critics of Harvard's admission process, which they claim discriminates against Asian American applicants, appealed the case to the Supreme Court hoping the justices' conservative majority would reverse the decisions of two lower courts and rule in their favor.

Although Trump's Department of Justice already filed a friend of the court brief in favor of the plaintiffs, Students for Fair Admissions (SFFA), most legal experts expect that the Biden DOJ would reverse that brief.

The justices reviewed the case Thursday to decide whether or not to accept to hear the appeal. Instead, they requested a “call for the views of the Solicitor General” — known as a CVSG, not an unusual action.

However, Biden has not yet named a Solicitor General. That role is being filled by Acting Solicitor General Elizabeth Prelogar.  In this case, the CVSG may delay a decision on the petition until the fall, though the case could still be heard during the Court’s 2021-2022 term that begins in October with a ruling delivered in 2022.

The Supreme Court set no deadline for the filing in the admissions case that is filed by SFFA on behalf of Asian American students, although none of the student plaintiffs offered in-person testimony in the lower courts. 

SFFA claims Harvard's consideration of race in evaluating a student's application works against Asian Americans who scored higher in standardized tests than some of the applicants who were accepted.

SFFA President Edward Blum, an anti-affirmative action crusader, wrote in an email that the Supreme Court’s invitation for the current administration's position was not unexpected.

“Students for Fair Admissions remains hopeful that, regardless of the views of the solicitor general, the justices will grant to hear our case and end race-based affirmative action in college admissions,” he wrote.

Harvard did not comment on the justices' decision.

John C. Yang, president of Asian Americans Advancing Justice, which filed a brief backing Harvard's admission practices, said that the evidence reviewed by the two lower courts is proof that the Supreme Court should deny SFFA’s petition. “We think the evidence is clear, as demonstrated by both the District Court and the 1st Circuit opinion that there was no discrimination against Asian Americans. And we don’t think that this is a case that is worthy of Supreme Court review,” said Yang.

Yang said the evidence also proved that using race as one among many factors in admissions has helped to increase diversity in higher education more broadly, and that it is a “permissible goal, according to a long line of Supreme Court precedents.”

“And we have seen the damage that has been done when race is not allowed to be considered. So from a statistical perspective, it is clear,” added Yang. Statistics confirm that Harvard dropped the consideration of race in its application process, African American and Hispanic enrollment would decline from 14 percent to 6 percent and 14 percent to 9 percent, respectively.

Initially, the SFFA complaint, which was first filed 2014, was portrayed by mainstream media emphasized the irony of a minority protesting a program meant to help them, giving the impression that the majority of Asian Americans were against affirmative action. That more sensational image was far from the truth.  Recent surveys by  API Data indicates that 70% of AAPI support affirmative action.

“But just as important to us is the humanity of this," said Yang. "We cannot see how a student can tell their story without including race in many of their applications.”

EDITOR'S NOTE: A word of caution -- this aanalysis is news laced with opinion, readers are encouraged to seek multiple sources to form their own opinion.