The Endless Harvard Admissions Case

We have previously tracked the Harvard admissions case - now at the US Supreme Court - on this blog. In the past, UC might have seemed to be insulated from the case, which essentially challenges affirmative action, because a) Harvard is a private university unlike UC, and b) California has the anti-affirmative action Prop 209 on the books (which voters did not repeal when recently asked). However, the Court seems to have combined the Harvard case with one from the University of North Carolina, a public university. And, if the Court ends affirmative action, UC's process could still be challenged on the basis of such factors as actual results (as opposed to official position),* and the opposition of the Regents to 209 when the possibility of repeal was on the ballot.

In any event, here is the latest from The Hill: The Department of Justice (DOJ) on Wednesday asked the Supreme Court to turn away a challenge to Harvard University's admissions practices, which plaintiffs claim are discriminatory against Asian American applicants. In a court filing, Solicitor General Elizabeth Prelogar urged the justices to let stand a lower court ruling that sided against the challengers, Students for Fair Admissions (SFFA), in finding that Harvard’s admissions practices were lawful. She argued that Harvard had demonstrated that its admissions satisfies the most rigorous constitutional scrutiny and that its use of race is "narrowly tailored" to its objective of promoting diversity on campus. 

The conservative-backed SFFA seeks to appeal its loss in the lower federal appeals court. In its petition to the justices, the group argued that White and Asian-American applicants are held to a higher academic standard than other students. The group further argued that Asian-Americans are disadvantaged in the application process due to receiving lower "personal ratings" and are admitted at a lower rate than White applicants despite having higher test scores on average.

Prelogar wrote that the argument of lower personal ratings was "factually and legally distinct" from the SFFA's challenge to Harvard's admissions process, in which the school has acknowledged that race is used as a "plus factor." A federal judge ruled in 2019 that Harvard's admissions program did not unlawfully discriminate against Asian-Americans, which the U.S. Court of Appeals for the 1st Circuit later affirmed. As Prelogar wrote, the SFFA gave "no sound reason to grant review in light of these difficulties."

The organization has also asked that the precedent set in the 2003 case Grutter v. Bollinger, in which the Supreme Court upheld the right of college admissions boards to factor in race to enhance diversity, be overturned. 

Source: https://thehill.com/regulation/court-battles/585029-doj-urges-supreme-court-to-reject-harvard-affirmative-action.

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*UCLA law professor Richard Sander has filed lawsuits trying to obtain detailed internal admissions data from UC for analysis, so far (I believe) unsuccessfully. He has an amicus brief in the Harvard case favoring the plaintiffs: https://www.supremecourt.gov/DocketPDF/20/20-1199/173516/20210331135938337_20-1199%20Amicus%20Brief.pdf. Were the Court to decide against Harvard, UC processes would likely be more vulnerable to such challenges.