Biden administration urges Supreme Court to reject Harvard affirmative action case

Washington — The Biden administration is asking the Supreme Court to turn away a legal battle brought by a group of Asian American students who argue Harvard College's admissions process violates federal civil rights law and discriminates against Asian American applicants.

The high court asked the Justice Department in June to weigh in on the request by the students, members of the organization Students for Fair Admissions, to hear their appeal of a lower court decision upholding Harvard's race-conscious admission policies.

In its brief filed with the Supreme Court on Wednesday, the Biden administration urged it to deny the petition, arguing it identified "no sound reason" to take up the case. While the Trump administration supported Students for Fair Admissions in lower court proceedings, the Biden administration has reversed the government's position and is backing Harvard.

Solicitor General Elizabeth Prelogar told the court that the student group "cannot justify that extraordinary step" of reversing its 2003 decision that allows higher-education institutions to use race as a factor in admissions. The case brought by the rejected applicants, she argued, is a "poor vehicle" for reconsidering its past decisions on affirmative action.

Additionally, the Supreme Court has cited Harvard's approach to admissions in decisions addressing other institutions' policies for 40 years, the Justice Department said.

"Those decisions have invited colleges and universities to rely on the permissibility of a holistic, flexible approach like Harvard's as a benchmark in structuring their own admissions policies," Prelogar wrote. "It would profoundly unsettle expectations to declare retroactively that such reliance subjects those institutions to Title VI liability."

The challenge to Harvard's admissions policies by the Asian American applicants is the latest that seeks to end affirmative action in college admissions. Students for Fair Admissions was founded by Edward Blum, who has led numerous legal battles challenging race-conscious admissions policies and opposes affirmative action.

In this case, the students sued Harvard in 2014 and alleged its admissions process violates Title VI of the Civil Rights Act by penalizing Asian American applicants. Students for Fair Admissions, which now has roughly 20,000 members, claims Harvard intentionally discriminates against Asian American students by assigning them lower personal ratings than other races while reviewing applications and limiting the number of Asian Americans it admits.

Harvard, however, argues it considers race in its admissions process "only in a flexible and nonmechanical way," and rejected the allegations of intentional discrimination.

A federal district court in Massachusetts ruled in favor of Harvard in 2019 and said its use of race was consistent with the Supreme Court's precedent. The 1st U.S. Circuit Court of Appeals agreed and upheld Harvard's admissions policies. The Boston-based court also found the admissions process does not intentionally discriminate against Asian Americans.

In their appeal of the 1st Circuit's decision, Students for Fair Admissions wants the Supreme Court to overrule its 2003 decision that allows higher-education institutions to use race as a factor in admissions. 

The Supreme Court could decide early next year whether to wade into the debate over affirmative action.