The lawsuits claim Harvard, a private institution, and the University of North Carolina, a state school, discriminate against Asian-American applicants. Lower courts rejected the challenges, citing 40 years of high court rulings allowing race to be considered as a way to promote diversity.
But with the court’s new conservative supermajority, legal experts including constitutional attorney Andrew Lieb said this decision could pose the most serious threat in decades to affirmative action in higher education.
“I need to point out that back in 2016 when it was last upheld, using race as a factor, it was a 4-3 court with liberals in the lead,” he said. “We’re greatly expecting this to overturn race being a factor.”
Lieb, who joined the Donlon Report, said since reverse discrimination has become such a hot topic, it’s bound to come up in the courtroom.
“People feel like there’s reverse discrimination going on … meaning I’m not getting in because of my race,” he said. “The case before us, though, is saying, ‘Hey, can they even consider race as a factor? Or do we have to instead of doing race-conscious admissions do race-blind admissions?’”
The Supreme Court has weighed in on college admissions several times over more than 40 years. The current dispute harks back to its first big affirmative action case in 1978 when Justice Lewis Powell set out the rationale for taking account of the race even as the court barred the use of racial quotas in admissions.
“What Justice Powell said is that the whole compelling government interest is having a diverse student body is better for robust interchange of ideas, and education,” Lieb noted. “Now, whether the current systems on how they do admissions or doing it right or wrong is … another conversation. But is there a compelling government interest? Clearly, there is.”
Both suits were filed by Students for Fair Admissions, a Virginia-based group run by Edward Blum. He has worked for years to rid college admissions of racial considerations, and the court’s new lineup breathed new life into his project.
The affirmative action case probably will be argued in the spring. A decision is not expected until the spring or summer of 2023.
The Associated Press contributed to this report.