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.
"That's what they want," said Anderson, formerly general counsel at Vanderbilt University, of those going up against race-conscious admissions. "They want it to go to the Supreme Court because the justices who upheld affirmative action are not on the court anymore."
Alison Kjergaard, a spokeswoman for the Justice Department's Civil Rights Division, didn't return an email seeking comment on the Yale and Harvard disputes.
Amid the flurry of court papers, a July study by the Education Trust, which advocates for educational opportunities for disadvantaged students, found that African Americans and Latinos continue to be underrepresented at 101 of the country's top public universities and that their representation has even regressed in many instances over the past two decades.
"I know that there's folks who are against affirmative action, of all backgrounds," who believe "that we are there, and it's not needed, and maybe there's even some over-representation or over-emphasis on race that we need to correct for," said Tiffany Jones, senior director of education policy at the Trust. That perception, she said, "is contradicted by the data and the research and the information about who has access to higher education."
In deciding for Harvard last year, U.S. District Judge Allison Burroughs found that the university didn't set quotas or give undue consideration to race when reviewing applicants, but instead weighed race as one of more than 200 factors including a student's socioeconomic background, area of study and letters of recommendation. Burroughs concluded there was no practical "race-neutral" alternative, as Blum's group had proposed, to Harvard's holistic admissions process in shaping a diverse class.
The evidence in the Harvard case "compellingly proved Harvard's systematic discrimination against Asian-American applicants," Blum said in an email. "We assert the district court erred in its analysis of this evidence and, surprisingly, virtually ignored Harvard's own internal studies" that his group said showed bias.
Meanwhile, the shot across Yale's bow may be Trump's way of encouraging a high-court review, Anderson said.
"Students for Fair Admissions is being strategic," she said, "and the Department of Justice is now helping them."
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