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Harvard, Yale face broad attack on race-conscious admissions

By Patricia Hurtado, Bloomberg News on

Published in News & Features

Conservatives see their best shot in decades to get rid of race in college admissions, and they're taking it.

As protesters across the U.S. rage against policies and practices that target African Americans, Latinos and other minorities, some of the nation's most prestigious universities are fighting a raft of legal challenges accusing them of unfairly weighting the admissions process against Asian-American and white applicants.

Yale and Harvard are set to respond this week to two of those challenges as two more make their way through the courts. The multiple efforts to defeat race-conscious admissions, including by President Donald Trump's Justice Department, could spur an increasingly conservative Supreme Court to revisit the process, even as the U.S. is embroiled in its fiercest struggle over race and privilege since the 1960s.

The court ruled more than four decades ago in its Bakke decision that race can be considered as one factor among many in creating a diverse class - which it has deemed an educational benefit for the whole student body - and has reaffirmed that stance over the years. Now, with Trump appointees Neil Gorsuch and Brett Kavanaugh on the bench, alongside their conservative brethren, some see a chance to take down what they argue is bias masquerading as equity.

"Sandra Day O'Connor basically opined that we could have another 20 years or 25 years of affirmative action programs, but that they would not go on forever," said Linda Chavez, chairman of the Center for Equal Opportunity, a conservative group that focuses on race and ethnicity. O'Connor speculated on such a time frame in 2003 when she wrote the high court's majority opinion upholding the use of race in admissions at the University of Michigan.

"And yet we do see them going on forever," Chavez said. "We're now talking about kids who are getting into college on the basis of some racial or ethnic preference who are the grandchildren of people who first got those preferences."


The Justice Department has threatened to sue Yale unless it agrees to stop considering race. "Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness, and division," the government wrote to the university in August. Yale, which has vowed to "vigorously defend" a process "endorsed repeatedly by the Supreme Court," is due to respond this week.

On Wednesday, Harvard goes before a federal appeals court over a case that it engages in "racial balancing" by holding Asian-American applicants to a higher standard than other minority groups. Harvard denies discriminating and won the case in federal district court last fall.

Two other lawsuits are pending against the University of North Carolina and the University of Texas. Behind all three suits is the activist Edward Blum, a longtime foe of affirmative action who founded Students for Fair Admissions, the group that sued the three universities. The Justice Department filed in support of the group in the Harvard case, saying the school's admissions process was "infected with racial bias."

With four challenges in four states, against both public and private universities, conflicting rulings from different appeals courts would make a Supreme Court review likelier, said Audrey Anderson, who heads the higher education practice at Bass Berry & Sims PLC in Nashville, Tennessee.


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