Higher ed, civil rights leaders decry high court decision to hear admissions case

Members of the Harvard community and leaders of higher education and civil rights organizations expressed dismay over the Supreme Court’s decision Monday to take a case challenging race-conscious admissions policies at Harvard and the University of North Carolina.

President Larry Bacow said in an email to the Harvard community on Tuesday that the College’s ability to consider race as one among many factors in admissions creates a diverse learning environment that enriches education for everyone. “Diversity opens our eyes to the promise of a better future,” he wrote.

“As the Supreme Court has recognized many times, race matters in the United States,” he wrote. “I long for the day when it does not, but we still have miles to go before our journey is complete. Harvard will continue to defend with vigor admissions policies that were endorsed in the thoughtful decisions of two federal courts that concluded that we do not discriminate; our practices are consistent with Supreme Court precedent; there is no persuasive, credible evidence warranting a different outcome. Though I wish yesterday had turned out differently, I remain confident that the rule of law — and the respect for precedent that perpetuates it — will prevail.”

The plaintiff in the cases against Harvard and UNC is Students for Fair Admissions, which is led by Edward Blum. In a press release posted to the SFFA website on Monday, Blum said, “We are grateful the Supreme Court accepted these important cases for review. It is our hope that the justices will end the use of race as an admissions factor at Harvard, UNC and all colleges and universities.”

Niyati Shah, director of litigation for the group Asian Americans Advancing Justice – AAJC, which has supported Harvard during the legal proceedings, reacted forcefully in favor of the University’s position in a statement issued after the Court’s announcement.

“Race continues to unfairly limit educational opportunities for students of color,” she said. “Race-conscious admission policies provide the chance for the student to tell their whole story, inclusive of their race, ethnicity, and lived experiences, in addition to their academic achievements. Asian Americans are being used as a wedge in these cases to try to dismantle race-conscious admissions policies, but the fact is 70 percent of Asian Americans support affirmative action. Our students deserve to have race-conscious admissions policies remain the law of the land.”

Sherri Ann Charleston, Harvard’s chief diversity and inclusion officer, reaffirmed the University’s commitment to diversity in an email to the community. “I am immensely proud of the work that has been done by Harvard College Admissions and across the University to help create the diverse work and learning environment that we now enjoy,” she wrote. “Diversity is our pathway to excellence, and we will continue to protect the benefits we now enjoy. This will be the foundation for Harvard’s excellence for centuries to come.”

Some are concerned the Court’s decision to hear the case opens the possibility the justices could overturn longstanding rulings on the issue, rejecting almost four decades of legal precedent and dramatically altering higher education. Such a decision could also have implications for diversity and inclusion that extend well beyond the nation’s college campuses, according to higher education leaders and others.

Ruth Simmons, president of Prairie View A&M University, testified on behalf of Harvard during the federal district court’s bench trial in 2018. While unsurprised the Supreme Court agreed to hear the case, Simmons said on Tuesday that she is concerned about what a potential reversal could mean for civil rights.

“Affirmative action in college admissions is certainly long-established policy. With the attempted rollback of civil rights gains currently underway, one expects the timeliness and appropriateness of this policy to be debated. So that’s not a surprise,” said Simmons. “The question is what this means for that continued rollback, because affirmative action in admissions and otherwise has been a central avenue to alleviate much of the historic discrimination in the country. So, what happens if affirmative action [in admissions] is ruled to be unconstitutional? That could have ramifications in many areas.”

Simmons, who as the former president of Brown University was the first Black woman to lead an Ivy League institution, added that she is keeping an open mind about the outcome.

“I don’t have a problem with our debating in every era whether or not our policies are appropriate and timely,” she said. “There’s nothing wrong with that. There is something wrong if there is a predetermined interest in reaching a decision because certain advocates want that decision to be reached. So, one has to be fearful, I suppose, of the political intrusion into this review. But one has to be hopeful that intelligent, knowledgeable justices will be able to figure out how vital this is to the future of the country. And I’m not so cynical about that, that I think it’s a foregone conclusion that there are political machinations that foretell the decision of the Court.”

Holistic admissions practices not only enable college and universities to achieve the compelling interest of a diverse campus, they “help mitigate systemic barriers to educational opportunities faced by many Black students and other students of color,” Sherrilyn Ifill,  NAACP Legal Defense and Educational Fund, Inc. (LDF) president and director-counsel, said in a statement on Monday. The LDF has submitted amicus briefs on behalf of a range of Harvard student and alumni organizations in support of the University.

“Given the lower courts’ meticulous and exhaustive opinions in SFFA v. Harvard and SFFA v. UNC that closely followed over 40 years of well-settled law, the Supreme Court’s decision to grant writs of certiorari seriously threatens the nation’s ideals of equality,” said Ifill. “A holistic, race-conscious college admissions program ensures that students’ experiences, shaped and influenced by race, are fully considered and appreciated for their potential contributions to a vibrant, dynamic, and diverse educational setting.”

Itzel Vasquez-Rodriguez ’17, who took the stand in support of Harvard during the 2018 district court trial, said she was surprised that the Supreme Court had agreed to hear the case, but optimistic it would rely on precedent when crafting its opinion. “I am hopeful that the Court will ultimately uphold the use of race-conscious admissions because I think throughout this process, the Court will revisit four decades of its own decisions, and those have affirmed admissions policies that have encouraged diversity, and have expanded opportunities for millions of students, including Asian students, and white students, and students like myself.”

Vasquez-Rodriguez said that diversity on Harvard’s campus and the representation of students of color was “integral” to her College experience enabling her to “learn, grow, and thrive.” She said that interacting with students from different backgrounds helped her “counteract a lot of my assumptions,” and offered her a “nuanced understanding of racial experiences in this country.”

Currently an engagement coordinator for the California State Water Resources Board, Vasquez-Rodriguez said her Harvard experience has been invaluable in her efforts to connect with underrepresented communities. “The lessons that I took from being in a diverse community on campus at Harvard have allowed me to directly provide skills and experience that I use in my day-to-day work.”

Simmons noted that there is more to a person than grades and test scores, saying “human potential manifests itself in many different ways. If you try to reduce the recognition of that potential to simple quantitative measures, you will be missing out on the opportunity to have a more level playing field in this country.” After a long career in higher education, she added: “A lot of the students that I’ve seen admitted to college with perfect profiles, quantitatively speaking, have done less well by far than students who had potential that had not been realized due to factors such as economic situation, limited background, and so forth.”

Peter McDonough, general counsel for the American Council on Education, said he wasn’t surprised that the Court had returned to the issue of race in admissions, noting that it first took up the issue in the 1978 case Regents of the University of California v. Bakke, and revisited most recently in 2016 in a case involving the University of Texas. “Of course, the Court has also repeatedly upheld the appropriateness and right of institutions to consider race and ethnicity as one set of considerations or elements when looking to put together a diverse learning environment,” said McDonough.

“When institutions are challenged for not following the rules, the Supreme Court has said the institutions have won,” he added. “Now we have the plaintiff saying, ‘OK, we’d like the rules to be changed.’”

McDonough said the case also raises important questions about institutional autonomy. “Our organization, joined by 37 others, submitted an amicus brief in the [last race-conscious admissions case that came] before the Supreme Court. And in it we stressed that there’s a constitutionally-protected freedom to assemble a diverse student body. And that would not amount to much if it didn’t include the freedom of an institution to define the diversity it seeks.”

The original complaint against Harvard by Blum and his organization alleged the College discriminated against Asian American applicants in its admissions practices. In 2018, during a three-week bench trial in federal district court, lawyers for Harvard successfully argued that the College’s consideration of race when determining the makeup of its incoming class complied with Supreme Court precedent. In a 130-page decision released in October 2019, U.S. District Judge Allison D. Burroughs found in Harvard’s favor on all claims. Just over a year later, a federal appeals court affirmed Burroughs’ ruling.

The court will likely hear oral arguments in the case during its fall term.