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Using race in college admissions protected by First Amendment, groups say

Higher education coalition submits brief to Supreme Court as affirmative action cases loom

A view of the U.S. Supreme Court building on June 29. (Al Drago/Bloomberg News)
5 min

Forcing colleges to ignore race in admissions would infringe on their academic freedom and discriminate against applicants who discuss life experiences related to their racial or ethnic backgrounds, a coalition of higher education groups told the Supreme Court on Monday.

The groups, in a legal brief, were seeking to highlight what they view as a First Amendment problem if the court decides to prohibit the consideration of race in admissions when it rules on two affirmative action cases pending in its next term.

The cases center on policies at Harvard University and the University of North Carolina at Chapel Hill that allow admissions officers to consider race as one factor among many in the holistic review of an application. Many competitive colleges and universities nationwide use this race-conscious approach, seeking to boost enrollment of underrepresented groups such as Black or Latino students. But public universities in California, Florida and several other states are not allowed to consider race.

A group called Students for Fair Admissions sued Harvard and UNC-Chapel Hill separately in 2014, alleging that their policies led to illegal racial discrimination. The plaintiff, which lost in lower courts in 2019 and 2021, is asking the high court to overturn decades of precedent and ban the consideration of race in admissions.

Race-conscious admission policies to face Supreme Court review

The American Council on Education, which represents college and university presidents, led 40 higher education groups in a friend-of-the-court brief supporting Harvard and UNC-Chapel Hill’s position that the court should allow the status quo to continue.

“A rule that prohibits race and ethnicity from being considered would ultimately chill prospective students from discussing their racial or ethnic identity or relying on recommendations that carry a racial or ethnic valence: leadership in an [African Methodist Episcopal] church choir, work for a Black-owned business, or receipt of a scholarship or internship designed to increase minority representation in particular industries or fields of study,” the education groups argued. “But all applicants should be allowed and encouraged to talk about their life experiences and how they might contribute to an institution’s educational environment or community commitments.”

The groups also contended that academic freedom is at stake.

“The First Amendment affords colleges and universities substantial deference on matters involving academic judgment and, as a result, safeguards the role of America’s colleges and universities as incubators for creative thought, productive dialogue, and innovative discovery,” the brief stated. Further, it argued: “Academic freedom necessarily encompasses decisions about who to enroll at any given institution.”

Edward Blum, president of Students for Fair Admissions, declined to comment.

The plaintiff argued in a brief in May that Harvard and UNC-Chapel Hill’s policies were unconstitutional under the 14th Amendment and that legal principles requiring a race-neutral approach to choosing a class “cannot be defeated by the whims of university administrators.”

The plaintiff also accused Harvard of mistreating Asian American applicants: “Its admissions process penalizes them for supposedly lacking as much leadership, confidence, likability, or kindness as white applicants.” Harvard denies those allegations, and a federal judge sided with the university after a 2018 trial.

Harvard and UNC-Chapel Hill, in their own briefs last week, cited Supreme Court rulings in 1978, 2003 and 2016 that allow race-conscious admissions within certain limits. Those rulings forbid racial quotas but acknowledge that schools have a compelling educational interest in seeking racial diversity among students.

While the 14th Amendment promises equal protection under the law, Harvard argued, it “does not require us to disregard the commonsense reality that race is one among many things that shape life experiences in meaningful ways.”

Interested groups often weigh in on high-profile cases. It is impossible to say which of these amicus, or friend of the court, arguments might draw attention from the justices. The 40 groups represented in Monday’s brief span a wide spectrum of higher education, including the American Association of State Colleges and Universities, the Association of Catholic Colleges and Universities and the United Negro College Fund.

For decades, the American Council on Education has leaned heavily on the argument that the court owes deference to the judgment of colleges and universities.

“The quality of American higher education is rooted in government forbearance,” the council contended in the 2003 affirmative action case dealing with university admissions in Michigan. It echoed that line of argument in a case from Texas the court heard a decade ago.

Now, as a conservative court majority reconsiders those precedents, the council is adding a new twist to its defense of the status quo: that admissions operations are essential to academic freedom and protected under the First Amendment.

“Colleges and universities cannot nurture the ‘robust exchange of ideas’ that so typifies the American tradition without a continued national commitment to academic freedom,” the brief argued. “Within higher education, there are few places where the need for autonomous decisionmaking is more acute than in the admissions process.”

The council said the issues affect more than highly selective colleges. It cited the recruiting needs of a university fine arts program that works with a historically Black dance company; a school devoted to contemporary Native American and Alaskan Native art; and a historically Black divinity school.

“These programs should be able to consider an applicant’s race or ethnicity as one of many factors to ensure that the diversity of their admitted students bears some relation to the mission being pursued,” the council said.