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Monday, May 16, 2022

Briefs on the Pending Harvard/U of North Carolina Cases

Inside Higher Ed today carries a story about the Harvard/U of North Carolina case on affirmative action in college admissions that is now before the US Supreme Court. The thrust of the article is that conservative organizations and political figures have sent briefs to the Court opposing affirmative action that may be influential, given the current tilt of the Court. 

Of course, the court is now embroiled in controversy over the leaked draft decision on abortion. Whether the Court will want to upset two longstanding positions at the same time (abortion rights and affirmative action), is an interesting question.* How much controversy is the Court willing to provoke?

Also an interesting question is the degree to which California's Prop 209 - the anti-affirmative action measure adopted by voters in the mid-1990s - will shield UC from judicial scrutiny if the court does bar affirmative action. (The UC argument would be that since it complies with 209, there is nothing in its admissions practices that would run afoul of a hypothetical Supreme Court ban.)

Below is an excerpt from the Inside Higher Ed piece:

Making Their Arguments Against Affirmative Action

Thirty-four briefs argue that Harvard and UNC, and other colleges that base their admissions plans on the Grutter decision, should be forced to change.

By Scott Jaschik, May 16, 2022

Thirty-four briefs were filed, most of them last week, urging the U.S. Supreme Court to reverse its past support for affirmative action in college admissions. The briefs could be cited in the Supreme Court’s decision, expected next year, on the admissions systems at Harvard University and the University of North Carolina at Chapel Hill. No college or university filed a brief, although the deadline for briefs in favor of Harvard and UNC is more than a month away. Many colleges and higher education associations are expected to weigh in at that time.

Within some academic circles, it is simply accepted that Harvard and UNC should win the cases. The briefs filed last week may not win over those who believe that. But they do demonstrate the breadth of the forces opposed to affirmative action. One of the briefs is labeled as coming from “senators and representatives supporting” the end of affirmative action. It is actually from 14 Republican senators and more than 50 Republican members of the House of Representatives. While that may not seem like a large number in terms of Congress, which has 535 members, those involved in the brief include Senators Ted Cruz of Texas, Mitch McConnell of Kentucky, Lindsey O. Graham of South Carolina and Josh Hawley of Missouri, and Representative Kevin McCarthy of California. McConnell and McCarthy are the Republican leaders in the Senate and House, respectively.

The members of Congress begin their brief by denouncing the Grutter v. Bollinger decision, which in 2003 upheld the right of the University of Michigan law school to consider race in admissions. “Grutter is a constitutional anomaly,” the brief says. “Decisions under the Fourteenth Amendment firmly establish that equal protection of the law includes the right to equal treatment regardless of one’s race. Except for race-conscious college admissions, laws and policies dividing people by race are immediately suspect.” As a result, the members say, “Asian-Americans are increasingly victimized by discriminatory practices.” (A theme of many of the briefs is to charge that affirmative action discriminates against Asian Americans.)

Another political figure submitting a brief was Edwin Meese III, attorney general under President Reagan. Meese’s brief said Grutter “was met with fierce criticism by four justices, and it has not aged well; indeed, Grutter cleared the path for the discrimination of Harvard’s and the University of North Carolina’s Asian American applicants described throughout the petitioner’s brief. Besides these critiques, Grutter suffers from another deficiency—it makes no attempt to connect its holding to the meaning of the Fourteenth Amendment as understood by the generation that ratified it.”

The states of Oklahoma and Texas also filed briefs. The Oklahoma brief noted that Asian Americans can be found there and in many states. “Oklahoma City is home to one of the country’s largest Vietnamese-American communities. Tulsa has the largest concentration of Burmese-Americans of Chin ethnicity. Clarkston, Georgia has the most concentrated Bhutanese-American population in the United States. Alabama has thriving Chinese and Korean communities. Dublin, Ohio, is nearly a quarter Asian-American. Louisiana was the site of one of America’s first Asian communities after Filipinos settled in Saint Malo prior to the founding,” the brief says...

Full story at https://www.insidehighered.com/admissions/article/2022/05/16/briefs-offer-reasons-do-away-affirmative-action.

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The briefs are at:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-1199.html.

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*An earlier blog post touched on this issue:

http://uclafacultyassociation.blogspot.com/2022/05/maybe-theyll-leak-this-one-too.html.

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