As race-conscious admissions policy goes before the Supreme Court, 6 experts listen to the following

The U.S. Supreme Court will hear arguments Monday in two cases challenging colleges’ weighting of race in admissions decisions — one against Harvard College and the other against the University of North Carolina at Chapel Hill. The outcome of the cases that have made their way through the court system since 2014 could decide the fate of race-conscious admissions in America. Legal observers believe that the court, which has now become conservative, may seize the opportunity to end the practice altogether.

Chronicle asked six legal and higher education experts to share the one key thing they’ll be watching for during Monday’s debates and why it could be pivotal. These are not predictions, but informed thoughts from people who have been following the events for about nine years.

Liliana M. Garces, professor of educational administration and policy at the University of Texas at Austin, who studies how legal and educational systems shape educational opportunities.

These cases represent a conflict in America over how to address racial discrimination and promote equal access and opportunity in higher education. I’ll be watching the justices debate this question as they consider how to interpret the Equal Protection Clause of the 14th Amendment to the US Constitution.

Illustration of a series of closing doors

Special report on the threatened future of race-conscious admissions.

For 44 years, the Court has interpreted the Equal Protection Clause to allow limited consideration of race in admissions so that postsecondary institutions can promote educational opportunities and maintain racially and ethnically diverse campuses that are critical to their educational mission and the preservation of children’s health. our democracy. It’s an approach that says: Let’s promote equal access and address racial discrimination—not by ignoring race, but by understanding how it shapes educational opportunity. The plaintiffs in those cases are asking the justices to reverse that interpretation, based on the fallacy that recognizing race in admissions is the same as racial discrimination.

Research consistently shows that failure to consider race as one of the many factors in admissions exacerbates racial inequality and allows racial discrimination to persist. We address racial discrimination by recognizing the importance of race in a student’s life, not by ignoring that reality.

OiYan Poon, visiting professor of education at the University of Maryland, College Park and co-author of the book. Rethinking college admissions: Research-based practice and policy.

I listen to judges and attorneys talk about Asian Americans in relationships with other students and people. Ed Blum and SFFA [Students for Fair Admissions, the plaintiff] bet judges and the public to believe racist stereotypes about Asian Americans, Native Americans, African Americans, and Latinos. Some think that Asian Americans are stereotypically and generally hardworking and bookish, and that other students of color are not intelligent and hardworking—all flat and dehumanizing notions of people. We are all complex individuals whose educational journeys have been shaped by different local, social and economic contexts.

Race-conscious holistic admissions practices allow admissions professionals to validate the unique backgrounds and stories of individual students. Diversity is important for education and a healthy democracy. Research has shown that Asian Americans benefit from race-conscious admissions and that most Asian Americans support affirmative action and have not fallen for SFFA’s divisive rhetoric. Do educational research and the Asian American majority perspective matter to judges?

Joshua Dunn, professor of political science and director of the Center for the Study of Government and Individuals at the University of Colorado at Colorado Springs.

Of the two cases, I think Harvard has the better, if slim, chance of winning. To do that, they need to get two conservative votes, so I’ll be watching closely as their defenders try to convince some conservative wing that they’re not engaging in harmful discrimination, or how even if that bloc has concerns. of Harvard’s policy that they should be more concerned about allowing more federal control of private institutions. For the former, I think it takes better than their briefs to explain why Asian-American applicants consistently receive lower “personal ratings” than other groups.

Court strikes down Michigan’s undergraduate admissions program Gratz vs. Bollinger because it was too “automatic” in awarding points to applicants from historically underrepresented groups. Personal judgments are likely to be suspiciously automatic for conservatives. For the latter, Harvard could seek to appeal to long-standing conservative concerns about the homogenizing and centralizing effects of imposing state policy on private institutions. But that would require them to make arguments uncomfortably similar to those of the original opponents of the Civil Rights Act of 1964. But in the end, it may be their best hope.

Art Coleman, Managing Partner of EducationCounsel LLC and former Deputy Secretary of the Office for Civil Rights, US Department of Education.

I’m very interested to see if any member of the court raises the question of what exactly is on the table, as the court sees the big question in these cases: whether colleges can continue to use race as a factor. in admissions.” Specifically, there is a potentially important distinction to be made between considering an applicant’s racial status and their identity—the applicant’s authentic, lived experience and perspective that emerges through a holistic review. (Even SFFA has said that applicants should be able to describe their experience of “overcoming discrimination” , which they have experienced.) Like many amici [the friend-of-the-court briefs] representatives of higher education organizations and institutions have explained that it is impossible to reliably conduct an authentic, complete, holistic review of an applicant (regardless of race) unless that applicant can tell their whole story, which may include their background and related interests. with or informed of their racial or ethnic identity.

If this Court is inclined to address the SFFA’s central question—that it overturn decades of judicial precedent regarding consideration of race in admissions to advance the interests of diversity—whether lines and boundaries must be drawn that expressly preserve the integrity of comprehensive review. , as discussed above, is it consistent with constitutional conservative principles?

Kimberly West-Faulcon, a professor of law at Loyola Law School in Los Angeles who studies constitutional law and anti-discrimination law.

Since I don’t expect many surprises in how the Court diverges on the constitutional interpretation of the Equal Protection Clause in the UN case, I will focus most on whether SFFA vs. Harvard case may further reduce its effectiveness Title VI of the Civil Rights Act A 1964 regulation that allows federal agencies to combat racial discrimination by freezing federal funding for programs that exclude, deny benefits, or discriminate on the basis of race. Because I suspect there are several justices who want to do something similar to what the Supreme Court did with Title VI Shelby County v. Holder, if it undermined a key provision of the Voting Rights Act of 1965, I pay particular attention to whether any of the justices on the right seem interested in reinterpreting Title VI in the Harvard case.

If the court leaves Title VI intact, the implications of this case will be a little more about selective university admissions. If it reinterprets Title VI, I think the future anti-civil rights ramifications of the decision will go far beyond who gets selected to attend colleges like Harvard.

LaWanda WM Ward, associate professor of education at Pennsylvania State University, researches higher education, civil rights, and race and ethnicity.

In my dissertation, I used critical race theory as a critical discourse analysis of US Supreme Court oral arguments. Bakke, Thank you, Grutter, Fisher I, and Fisher II. So I’m very interested to see which judges ask the student intervenors’ counsel questions and what those questions entail.

In previous race-conscious admissions cases before the Supreme Court, he denied representing students at oral arguments. I think student advocacy—which includes the experiences of students of Asian heritage to maintain race-conscious admissions—can be powerful, especially for conservative Justice Amy Coney Barrett, who recently trained as a law professor. The composition of the court is different from when the court heard Fisher in cases where Justices Ruth Bader Ginsburg and Antonin Scalia — very vocal and for very different purposes in the constitutional debate — are no longer on the bench. I’m most interested in how Justice Ketanji Brown Jackson questions the arguments for a race-avoidant approach to race-conscious admissions, because at oral argument Merrill vs. Milligan he recently challenged the dominant race-avoidance legal narrative established by the Roberts Court on the interpretation of the Equal Protection Clause of the 14th Amendment.

University of Michigan Oral Statements [in the Gratz and Grutter cases] if it happened on April Fool’s Day 2003, I hope that Halloween – which I associate with Michael Myers – has no bearing on Monday’s incidents.

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