College Files Amicus Brief in Harvard, UNC Supreme Court Affirmative Action Cases

The college filed an amicus curiae brief on Aug. 1 in support of Harvard College and the University of North Carolina in the upcoming Supreme Court cases challenging the use of race as a factor in their admissions processes.

The brief, which was coordinated by the college and signed by 32 peer small liberal arts colleges and universities, attested to the especially “compelling interest” that the signatories have in enrolling diverse — in particular, racially diverse — classes, and the need for “race-conscious” admissions to achieve such diversity.

“Prohibiting the consideration of race in admissions decisions would result in greater inequity, both on college campuses and in American society — and it would substantially impair the ability of institutions to educate students to become the citizens and leaders that a diverse democracy requires,” said President Michael Elliott in the college’s press release about the brief. “Our admissions practices have served our students well and, as those students graduate into the wider world, served the public at large. Therefore, we felt that it was critical to express our full support of a holistic admission process, including the holistic consideration of race and ethnicity as one of many factors, to the Court, as well as the general public.”

The Harvard and UNC cases will be heard by the Supreme Court this fall, with a decision likely coming out in late spring or summer of 2023. Both cases were brought by Students for Fair Admissions (SFFA), an organization headed by conservative legal strategist Edward Blum. The group charges that Harvard’s admissions practices penalize Asian American applicants and engage in racial balancing, thus violating Title VI of the Civil Rights Act, which prohibits discrimination based on race, color, or national origin in any program or activity that receives federal funding. The group similarly argues that UNC violates Title VI, as well as the 14th Amendment’s Equal Protection Clause, in rejecting race-neutral admissions practices without proving that such practices would cause a heavy sacrifice in educational quality.

In addition to questions about the legality of Harvard’s and UNC’s particular admissions processes, the Court will consider the broader question of whether previous rulings Regents of University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas at Austin — all of which affirmed the constitutionality of race-conscious admissions — should be overruled.

All nine justices currently on the Court will hear the UNC case, while eight justices will hear the Harvard case, as Justice Ketanji Brown Jackson, a member of Harvard’s Board of Overseers, has pledged to recuse herself.

“Given what happened in the Dobbs [v. Jackson Women’s Health Organization] case, I would not be surprised if this court overturned Bakke, Grutter, and Fisher, and decided that race-conscious admissions policies violated the 14th Amendment,” said Martha Umphrey, the Bertrand H. Snell 1894 professor in American government.

“Like abortion rights, affirmative action has long been a bête noire of the conservative legal movement,” she added. “So this is, in some ways, very much resonant with what's just happened in the Dobbs case — this issue of affirmative action has been challenged again and again and again, as Roe vs. Wade was, and the court is now finally composed of people inclined to overturn [it].”

The brief filed by the college argues that Grutter v. Bollinger, the case that first held that diversity was a compelling interest that could sustain race-based admissions, should be upheld.

In arguing that diversity presents a compelling interest for the signatories, the brief cites research supporting the educational and social benefits of diverse learning environments for preparing students to succeed in a “dynamic, democratic, and increasingly diverse society,” noting that such benefits are magnified at small schools, like the signatories, where there is constant interaction and engagement among diverse peers.

The brief also cites evidence showing that “[w]ithout the ability to take race into account in admissions, Amici would find the kind of diversity they seek nearly impossible to attain.”

“Amherst, for example, has determined that an entirely race-blind policy would reduce the percentage of historically underrepresented students of color in its student body—including Native American, Black, and Hispanic students—by approximately half,” the brief writes.

Umphrey explained that demonstrating a compelling interest for race-conscious policy is necessary for such policy to remain constitutional under the 14th Amendment, a precedent set by Korematsu v. U.S.

“[As stated in the Bakke case], affirmative action cannot be used to remedy past injustice or past harm — it's not to be used as a remedial strategy,” she added. “So diversity is the only constitutional rationale for admitting students with an eye to race.”

The brief also argues that the signatories have faithfully applied the directives outlined in Grutter specifying how race may and may not be used within the admissions process, using Amherst’s holistic review process as an example. It notes that even if a school’s admissions process were shown to discriminate against a racial group and thus violate Grutter, it would not show that Grutter is not workable at all: “To overrule Grutter based on the actions of a single school or two is akin to throwing the baby out with the bathwater.”

“The argument there [is] that even if Harvard somehow messed up and went over the line that's constitutionally permissible under Grutter and Fisher, other schools have not done so,” said Umphrey. “And so even if Harvard has made mistakes, Amherst has not made mistakes, and the underlying justifications for affirmative action remain compelling whether or not Harvard may have been determined to have made a mistake.”

The brief’s final argument points out the “heavy reliance interests” the signatories have in enrolling diverse classes, including substantial investments in developing admissions programs according to the requirements of Grutter and Bakke.

“Reliance interests are asserted when you don't want the Court to overturn a prior decision,” explained Umphrey. “[It tells the Court that] we've invested a lot of money and time and human resources into a model of education that will be very disrupted if the court overturns these prior precedents.”

The brief has received wide approval from members of the college community. “I think it’s great that Amherst has taken a lead in this area, especially given how much as a school Amherst talks about the value of diversity and inclusion,” said Olivia Zheng ’20, who works as an immigration rights coordinator for the civil rights organization Chinese for Affirmative Action.

The charge that Harvard’s policies unduly penalize Asian American students remains a contentious point for some, however, with one comment on the college’s Instagram post announcing the brief reading, “Stop discriminating against Asians.”

“I think people should distinguish between affirmative action and possible bias in [colleges’] reviews of applications by Asian Americans,” said Associate Provost and Associate Dean of the Faculty Pawan Dhingra, who does work in topics of Asian American studies, race, education, and diversity, equity, and inclusion. “In other words, you can keep affirmative action and defend it, while still allowing for there to be the possibility of bias against Asian Americans that should be eradicated and overcome. They’re separate issues, not identical.”

Zheng called the idea that affirmative action is discrimination against Asian Americans “very much a red herring.”

“Is it possible that there's some kind of inherent bias or unconscious bias from admissions officers or stereotypes around Asian American students? I think it's definitely possible,” she said. “But I think that if anything, that is more of an argument for why we should be using race-conscious admissions, acknowledging that those kinds of stereotypes exist.”

“Even looking at Edward Blum — this white, conservative lawyer — his motives are not to bring justice to Asian Americans,” she added. “It’s using it as a tool to bring down affirmative action.”

Zheng also noted the various benefits she sees affirmative action as having for Asian Americans.

“For example, there are certain fields where Asian Americans are underrepresented, or even certain job industries,” she said. “And I think, in general, race-conscious admissions is something that also helps Asian Americans. Like for me, when I talk about my family story and why I'm interested in the different education topics I'm interested in, race and my family's racial background is a big part of that.”

If affirmative action is overturned as many expect it to be, Zheng thinks that it would have a huge impact on both the opportunities available to students from diverse backgrounds and the experiences of all students.

“A big portion of why I was drawn to Amherst and why I decided to go to Amherst was because they talk so much about diversity,” she said, noting that she attended a high school that was mostly Asian, and also fairly homogeneous in ethnicity and socioeconomic status. “If I think about what my Amherst experience would have been like without such a diverse student body, I think there's a lot that I wouldn't have been able to learn and a lot of ways that I wouldn't have been able to grow into the person that I am today.”

Editor’s Note: Zheng’s comments reflect her views alone, and do not represent the official position of Chinese for Affirmative Action.