The Supreme Court will hear oral arguments today in Students for Fair Admissions (SFFA) v. President & Fellows of Harvard College, a case that challenges the use of race as a factor in admissions in institutions of higher education.
Cara McClellan, founding director of the Advocacy for Racial and Civil (ARC) Justice Clinic and associate practice professor of law at the University of Pennsylvania Carey Law School, contributed to the NAACP Legal Defense Fund’s amicus curiae brief filed in the case.
Prior to joining Penn Carey Law, McClellan represented students and families in school desegregation cases and students and alumni in the SFFA v. Harvard litigation, defending Harvard’s affirmative action admissions.
“This case really has two different sets of claims,” explains McClellan. “The one that has gotten a lot of attention is the intentional discrimination claim, in which the plaintiffs have alleged that Asian American applicants are discriminated against during the admissions process. The second claim is a claim arguing that race-conscious admissions is unconstitutional, which is a direct attack on over 40 years of precedent in which the Supreme Court has said repeatedly that race can be considered as one of many factors in admissions, so long as the consideration of race is narrowly tailored to serve the compelling interest of pursuing the educational benefits that flow from diversity.”
However, McClellan says, “it’s important to separate their claims challenging race-conscious admissions from their claims arguing that Harvard discriminates against Asian American applicants because they are separate issues. Part of SFFA’s strategy has been to conflate the issues and create a narrative that considering race in any way must cause discrimination. But in fact, when you look at the evidence and the expert reports in the case, it’s not true that considering race as a plus factor for Black and Latino students leads to less Asian American students getting admitted to college. Even if you removed every Black, Latino, and Native students from the applicant pool entirely, the rate of admissions for Asian American students would not increase significantly because the vast majority of students who apply to Harvard are white.”
McClellan also explains how under current law colleges and universities permissibly consider race in admissions. “The Supreme Court has said repeatedly that race can be considered as one of many factors in admissions, so long as the consideration of race is narrowly tailored to serve the compelling interest of pursuing the educational benefits that flow from diversity. This means universities can target a general goal of having what’s referred to as a critical mass of underrepresented minority students to combat stereotyping and tokenism.”
If affirmative action ends, McClellan cites real-world examples of the impact. “We also know from the real world, from “experiments” about this from states where race-conscious admissions have ended. For example, in Michigan and California, we know that Black student enrollment has decreased by more than 25% and Latinx student enrollment has decreased by nearly 20%, according to multiple studies. Ending race-conscious admissions would thus create a significant barrier to ensuring that students of all backgrounds have access to higher education and to the career pipelines that universities create.”
Read more at Penn Law News.