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(WASHINGTON) — The U.S. Supreme Court will once again revisit the legality of affirmative action in higher education, after last upholding decades-old precedent in 2016.
On Monday, the High Court said it would take up a pair of cases challenging the use of race as a factor in undergraduate admissions at Harvard University, the nation’s oldest private college, and at the University of North Carolina, the nation’s oldest public state university. .
The fact that the Supreme Court has agreed to hear the cases together is seen by some experts as an indication that the conservative-leaning body may be willing to review its precedents and end race-conscious admissions in education. higher – which proponents say will have wide-ranging implications for schools and beyond.
Some studies suggest that policies—which consider race as one of many factors when considering applicants to foster diversity in the student body—have had a profound effect on opportunities for minority applicants, which in turn has an impact on their chances of employment and career. And they suggest stopping them not only decreases the number of black and Latino students enrolling in colleges, but increases those of advantaged groups.
“This is a very, very significant threat to the continued constitutionality of affirmative action,” Tanya Washington, a law professor at Georgia State University whose research focuses on educational equity, told ABC News. .
Opponents — including the conservative group Students for Fair Admissions, which brought both lawsuits against the universities — have argued that the policies are discriminatory and violate students’ civil rights and the constitutional guarantee of equal protection.
Since 1978, the court has said race can be used as one factor among others in college admissions, prohibiting the use of quotas or mathematical formulas to diversify a class.
In the landmark 2003 case Grutter v. Bollinger, which the cases against Harvard and UNC seek to overturn, the court said the goal of a diverse student body justifies the use of race, as well as other factors, in admissions policies.
The court raised the bar for schools with its 2013 decision in the case of Abigail Fisher, a white woman who tried to end consideration of race in university admissions policies from Texas. In the majority view, former Justice Anthony Kennedy said institutions must first exhaust all racially neutral means to achieve racial diversity, such as recruitment and socio-economic indicators, before to consider race, Washington said.
The court last upheld affirmative action in 2016 when it considered Fisher’s case again, in a close vote that many expected at the time to upend gender-conscious admissions policies. race.
Since that ruling, the composition of the tribunal has changed in a way that suggests precedent could be overturned, according to Washington.
“The court moved to a more conservative block of judges — 6 to 3 — and I think there would be significant receptivity among that group of six to overturning Grutter v. Bollinger,” Washington said. , noting that the breakup is unlikely. change with the retirement of Justice Stephen Breyer.
With this latest case, the court could rule in a number of ways, according to Washington. It could say that using race in admissions violates the 14th Amendment’s Equal Protection Clause and overthrows Grutter, ending affirmative action. He could support Grutter and conclude that the use of race in admissions policies at Harvard and UNC was constitutional. Or he could support Grutter but find the use of race in these contexts unconstitutional.
The court could also potentially further restrict the practice or require “higher standards” for schools to use it, said Michael Olivas, holder of the William B. Bates Emeritus Professor of Law at the University of Houston Law Center, at ABC News.
The consolidation of the two cases signals to Washington that “a majority of the court may be prepared to overrule Grutter.” The fact that the court also seemed inclined to overturn another long-standing precedent in Roe v. Wade could also be pointing to the same thing here, she said.
Against the wisdom of convention at the time, Olivas said the court would uphold affirmative action in the 2016 case. He said he believed the same now, even with a different court composition.
“The world has changed, but the common law has not changed,” he said. “I hope 50 years of very clear law would hold.”
If the court ends affirmative action in higher education, the impact will be far-reaching, Washington said, because most institutions — except those in several states where it is banned from public universities — use race-conscious admissions policies.
“It won’t just impact the elite,” Washington said. “What we’re going to see, what I predict, is a cataclysmic drop in the number of Latino, Black, and Indigenous students attending institutions of higher education.”
A 2015 study published in the Journal of Higher Education that examined the impact of affirmative action bans in six states found that the share of students of color in medical schools fell after the bans took effect. .
In California, which has banned affirmative action policies at public universities in the state since 1996, education advocacy group EdSource found that there was a double-digit enrollment gap between the percentage of Latino high school graduates and those enrolled in the University of California’s 2019 freshman class. .
If Harvard were to stop considering race in its admissions process and use only race-neutral factors, the proportion of African-American students admitted to the Class of 2019 would likely have dropped from 14% to 6%. , and the proportion of Hispanic or “other” students from 14% to 9%, found a university committee. Meanwhile, “this decrease would produce a corresponding increase in the number of students of other races, primarily white students,” its report said.
Disparities in admissions have implications for those entering professional fields, such as law or medicine, as well as college professors, Washington said.
“I think it will make the quality of education less robust and less rigorous,” she said. “I think this will mean that we will also end up with fewer teachers and professionals of various races. This will have detrimental and far-reaching consequences for our society.”
For Olivas, one of the worst consequences of the potential end of affirmative action is the message it sends.
“I think this will send a signal to minority parents that their children are not wanted,” he said. “I think that would be a mistake for all of us. I want a better educated group no matter where they come from.”
Whether affirmative action is maintained or not, disparities in admissions would still exist thanks to policies such as inherited admissions, which tend to disproportionately benefit white applicants, he added.
In the case against Harvard, Students for Fair Admissions alleges that Asian American applicants were unlawfully targeted and rejected at a disproportionately higher rate, in violation of students’ constitutional rights. In the case against UNC, he alleges that the university has refused to use racially neutral alternatives to achieve the stated goal of a diverse study body.
“Every college applicant should be judged as a unique individual, not as a representative of a racial or ethnic group,” said Edward Blum, president of Students for Fair Admissions and longtime opponent of affirmative action. and conservative activist, in a statement. .
In its lawsuit against Harvard, Students for Fair Admissions also argued that racial classifications “have a stigmatizing effect” on applicants.
“Regardless of whether an African-American or Hispanic applicant is admitted to Harvard because of racial preference, so long as racial preferences exist, it will often be assumed that race is the reason for the applicant’s admission to Harvard. school,” the complaint said. . “This stigma can have a devastating effect on the psyche of impressionable students.”
In response to the Supreme Court’s ruling this week, Harvard and UNC said their admissions policies were ruled constitutional by lower courts.
“Considering race as one factor among many in admissions decisions produces a more diverse student body that strengthens the learning environment for all,” Harvard President Lawrence Bacow said in a statement.
UNC spokesperson Beth Keith said in a statement that its holistic admissions process “allows for a deliberate and thoughtful evaluation of each student.”
Many experts, including Washington, expect the Supreme Court to hear arguments in the case during its next term, which begins in October.
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