Will the Supreme Court ruling on affirmative action affect Harvard’s pending case?
Probably.
Students at the University of Texas weren’t the only ones anxiously awaiting Thursday’s Supreme Court decision on affirmative action in college admissions. In case you missed the buzz, Abigail Fisher, a white woman, sued the University of Texas because she believed she was denied admission to the school in favor of minority applicants with lesser credentials.
Fisher was backed by the Project on Fair Representation, which is also behind a case at Harvard. Edward Blum, director of the project, filed a lawsuit against Harvard in 2014 that says the university’s admissions policies negatively impact Asian students. The Harvard case was put on hold pending the outcome of Fisher v. Texas.
In its decision Thursday, The Supreme Court upheld the University of Texas’s use of race-conscious admissions. Boston.com spoke with Neal Hutchens, a senior researcher whose work focuses on law and policy issues at the Center for the Study of Higher Education at Pennsylvania State University, to learn what this means for Harvard.
Why was the Harvard case put on hold for the outcome of Fisher v. Texas?
In October, Harvard officials requested that the lawsuit against the school be placed on hold because it deals with the same fundamental issues as the Fisher case.
What were those issues?
According to Hutchens, Fisher dealt with the constitutional issue of equal protection. At Harvard, the law at issue is Title VI of the Civil Rights Act of 1964, which “requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination.”
“Courts do interpret Title VI as they do equal protection,” Hutchens said. “That was the reason Harvard asked the case be put on hold.”
The ruling in the Fisher case was specific to the University of Texas. What effect will that have?
The court ruled that the main reason Fisher was denied admission was because of the school’s “10 percent plan,” in which the top 10 percent of the state’s high school graduates are admitted to the public college or university of their choice. The university showed this plan wasn’t enough to achieve racial diversity, so Hutchens said it will be critical that Harvard can also show they’ve tried non-racially based mechanisms and are still not getting enough students from diverse backgrounds.
Is there other precedent for these types of cases?
Yes. The Fisher decision upheld a case in 2003 involving the University of Michigan Law School, which said that, while the university couldn’t use a point system to give applicants extra points for race, it could use racial preferences in its law school admissions.
Before that, affirmative action made its first Supreme Court appearance in the 1978 case Regents of the University of California v. Bakke. The court ruled that, in setting aside a fixed number of seats for minorities at its medical school, the university violated the 1964 Civil Rights Act, which prohibits discrimination by federally funded programs. That case looked specifically at the Harvard plan for affirmative action, which Justice Lewis F. Powell Jr. said was a model for race-conscious admissions because it didn’t use explicit quotas to achieve diversity.
“In a way we’ve gone full circle,” Hutchens said. “So I think this is potentially very important for future litigation.”
Does that mean the court will decide to uphold Harvard’s use of affirmative action?
“I think in light of the Fisher decision, the chance of upholding the affirmative action is much increased,” Hutchens said. “However, something that happens in these cases, and this has not changed over the course of the years, is that the use of race is subject to a high level of scrutiny. So while there are no guarantees, yesterday was an important victory and should bode well for Harvard.”
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