The Corner

Law & the Courts

Supreme Court Shows Interest in Harvard Anti-Asian Affirmative Action Case

The Supreme Court building in Washington, D.C., May 8, 2020 (Jonathan Ernst/Reuters)

This was another uneventful morning at the Supreme Court, with two uncontroversial decisions (one unanimous, one split between 9–0 and 8–1 decisions in two related cases) involving the First Step Act and the felon-in-possession statute. But the big news came in case number 20-1199, Students for Fair Admissions v. President and Fellows of Harvard College. The Court has yet to decide whether it wants to hear the case, but this morning, it asked the Biden administration to file an amicus brief setting forth its views of the case. Cases in which the Court asks the Solicitor General for such a brief are not always taken by the Court, but they are much more likely to end up on its docket.

While there is little doubt that the administration will side with Harvard, its position could be politically sticky, and the case could be explosive. The petition asks the Court to overrule its pro-“diversity” rationale for allowing universities to consider race in admissions:

 (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

Roger Clegg has set forth the argument for why the Court should hear this case, and it now has the Court’s attention. The case involves blatant discrimination against a group of non-white, historically discriminated-against group (Asian Americans) who have been the subject of much recent attention over anti-Asian hate crimes. Democrats have been very touchy about being forced to admit that they support Harvard’s discrimination. The Biden administration dropped an investigation into anti-Asian discrimination at Yale. Democrats rejected, by a 49–48 vote in the Senate, a Ted Cruz amendment saying that no college “may receive any Federal funding if the institution has a policy in place or engages in a practice that discriminates against Asian Americans in recruitment, applicant review, or admissions.” Congressman Ted Lieu erupted in anger at a hearing in March when Peter Kirsanow raised the issue. Hardly anything is nearer and dearer to Asian-American parents than educational opportunity. Democrats are understandably hesitant to openly admit that they support discrimination against Asian Americans in that very area. But they do.

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