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Harvard, one of the world’s most prestigious schools, has stated that the number of Black and Hispanic students would drop by almost half if its affirmative action program were to be eliminated. Photo: Twitter- Committee for Justice

One of the biggest Supreme Court battles of next year could be over affirmative action

Students for Fair Admissions v. Harvard is challenging a 2003 ruling that upheld the practice of affirmative action, first supported by the Court in 1978.

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On Monday, June 14, the Supreme Court decided to postpone action on a major challenge to Harvard University’s use of racial affirmative action in admissions protocol.

The court is likely to put it off for several months, delaying a case that could end nationwide practices that have increased acceptance of Black and Latino students for decades.

The high court issued an order requesting that the Biden Department of Justice offer its perspectives on the case, which means the nine justices are still weighing whether and when to hear arguments. 

This legal struggle began in 2015, when the group Students for Fair Admissions’ (SFFA) filed a lawsuit alleging that Harvard is discriminating against prospective Asian-American students.

The Court set no deadline for addressing the dispute. 

If it had outright accepted the challenger’s petition, the case would have been immediately added as another major cases for the 2021-22 calendar session, along with abortion rights and gun regulation.

The SSFA contended that the Ivy League campus holds Asian-Americans to a higher standard and essentially caps their numbers. The university argued that it sets no limits on this population of students and that all applicants are considered on an individual basis.

The court last upheld university affirmative action in 2016, when two of the justices in the narrow-five justice majority were Anthony Kennedy and the late Ruth Bader Ginsburg.

In urging the justices to allow its lower court victory to stand, Harvard lawyers argued that judges applied settled Supreme Court law to the facts of the case and that no divide in the larger issue exists among other U.S. courts.

Harvard maintains that it considers race only in a “flexible and non-mechanical way” and that these considerations only benefit “highly qualified candidates.”

In a broader sense, Harvard also urged the justices not to interfere with its precedents dating back to 1978, and have allowed for screening based partially on race to build a more inclusive and diverse student body.

“The American public has looked to this precedent for assurance that the Nation recognizes and values the benefits of diversity and that the path to leadership is open to all,” Harvard lawyers said.

Leading the SFFA team on appeal is William Consovoy, who has been on the case since the beginning. In the appeal, he urged the high court to reverse decisions that allowed race to be a “plus” in screening, asserting that “it’s a minus for Asian-Americans.”

A 2018 trial in the Harvard case produced a large amount of data and multiple witnesses, as the previously secretive admissions practices were brought to light. 

The documents and witnesses demonstrated that prospective students of African-American and Latino descent received benefits, as well as those with family wealth, legacy connections or athletic ability.

The challengers to Harvard argued that Asian-Americans applicants were penalized in a process that rated them as “book smart and one-dimensional.”

In November 2020, the Boston-based 1st U.S. Circuit of Appeals ruled that Harvard’s consideration of race was not “impermissibly extensive” and wasn’t meaningful since it served to prevent the racial diversity of its undergraduate student body from plummeting.

Harvard, one of the world’s most prestigious schools, has stated that the number of Black and Hispanic students would drop by almost half if its affirmative action program were to be eliminated.

SFFA President Edward J. Blum said in a statement that the group still hopes the Supreme Court justices will hear their case and rule against race-conscious admissions. 

“The cornerstone of our nation’s civil rights laws is the principle that a student’s race and ethnicity should not be used to help, or harm, their college admissions prospects,” Blum said. 

“It is our hope that the Supreme Court accepts this lawsuit for review and ends the use of race in college admissions at Harvard and all colleges and universities.”

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