Reshaped Supreme Court casts long shadow over Harvard trial

Harvard University has spent years getting ready for this month’s high-profile court battle over its affirmative action practices, hoping to uphold a method long understood as a nationwide model.

Might it ultimately consider backing out?

Officially, Harvard isn’t suggesting such a thing, and it continues to wage an aggressive defence in a trial at the federal courthouse in Boston.

But some in higher education, even among Harvard’s own allies, are looking years down the road – when a decision in the current trial is expected to reach the Supreme Court – and wondering if a strategic retreat could be the wisest overall approach for affirmative action in US higher education.

Those closest to the situation are declining to discuss such assessments for the record. But beyond Harvard, there’s at least some willingness to acknowledge the risks of the university proceeding along a path that could entrust affirmative action to a Supreme Court with new members suspected of being fundamentally hostile to minority rights.

The case against Harvard was brought in 2014 by Edward Blum, a conservative activist who has waged similar efforts against other US universities that also have tried to make their student bodies more racially diverse by giving some amount of additional preference to black applicants.

Despite such efforts, the Supreme Court has repeatedly upheld the right of universities to consider race in admissions. In the first major win, involving the University of California in 1978, Justice Lewis Powell specifically cited Harvard’s method as a template for how all colleges could legally include race as a factor in their own admissions decisions. Harvard integrates racial considerations into its overall assessment of each candidate, Powell noted approvingly, without resorting to explicit race-by-race numerical quotas, which the court considered unconstitutional.

The permanence of the Supreme Court’s position, however, is not certain. Justice Anthony Kennedy wrote the opinion for a single-vote majority that upheld the University of Texas’ affirmative action plan in 2016. But he retired in June and was replaced by Brett Kavanaugh, who has expressed support for the idea of colleges using “race-neutral” means of assembling their student populations. And Neil Gorsuch, another Trump pick added to the Supreme Court last year, is also expected to represent a sceptical attitude towards affirmative action efforts.

The main lobbying group for US universities, the American Council on Education, led 35 other higher education groups in filing a legal brief in July supporting Harvard’s position in the case. A spokesman for the council this week said that it would have no comment on whether the group was comfortable with Harvard taking that case all the way to the reconfigured Supreme Court.

One outside expert in race and the Supreme Court, Julie Novkov of the State University of New York Albany, said that she could not predict Harvard’s strategy for handling the court’s new membership. But Professor Novkov, a professor of political science, said that a chief motivation for a tactical retreat – should Harvard choose such a strategy – could be a desire “to avoid giving a Supreme Court with five almost certain votes against affirmative action the opportunity to hear the case”.

If Harvard were to back away from the case for the broader sake of other US colleges, she said, it probably could devise other strategies to achieve the racial balance that it seeks in its own student body, “and wait until the appellate environment is more amenable to push forward”.

Another expert, Marvin Krislov, said that he realised Harvard may now feel some responsibility for the fate of affirmative action in US higher education. But Mr Krislov, who represented the University of Michigan in one of its affirmative action cases before the Supreme Court, said he did not think that would or should lead Harvard to voluntarily abandon its defence.

“Harvard wants to win because Harvard wants to win,” for reasons ranging from the extensive legal fees that it could face, to the significant reputational damage that it could suffer, said Mr Krislov, now president of Pace University. As general counsel at Michigan, Mr Krislov handled the 2003 Gratz case in which the Supreme Court rejected its point-based system for boosting minority applicants but upheld the basic concept of affirmative action in admissions.

Mr Krislov said he believed that Harvard can safely take its case to the Supreme Court – without risking a broad assault by the court on affirmative action nationwide – because he trusts that, even in the nation’s highly partisan environment, any final ruling would avoid overturning precedents and only address whether Harvard is complying with the court’s existing opinions.

“I can’t predict what the court will do,” Mr Krislov said. “I would say that the court does have certain rules and norms, and I would expect and hope that they would follow them.”

paul.basken@timeshighereducation.com