Teachers unions, major corporations ask Supreme Court to allow affirmative action in college admissions

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Supreme Court set to begin new term with Justice Ketanji Brown Jackson

The court is expected to hear cases on controversial issues such as affirmative action and voting rights. 

As the Supreme Court prepares to hear arguments in a case that could determine the future of affirmative action on college campuses, hundreds of experts, lawmakers and major corporations have filed amicus briefs arguing on behalf of both parties involved. 

The Supreme Court Monday will hear oral arguments in two cases dealing with the admissions policies of Harvard and the University of North Carolina at Chapel Hill. Students for Fair Admissions (SFFA) sued both schools, alleging their policies, which consider race as a factor in admissions, discriminate against Asian American applicants. 

SFFA first sued Harvard in 2014, and is now asking the Supreme Court to overturn its 2003 landmark decision Grutter v. Bollinger, which permitted race to be considered as one factor in college admissions because it believed student body diversity was "a compelling state interest."

Major corporations like Google, Uber and Starbucks, along with teachers unions and prestigious universities, submitted amicus briefs asking the Supreme Court to find in favor of Harvard, allowing the practice of race being considered in the college admissions process to continue. 

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The Supreme Court  in Washington, D.C. (AP Photo/J. Scott Applewhite, File)

A brief submitted by the American Federation of Teachers, one of the largest teachers unions in the United States, argued that all students, and society at large, will benefit from racial diversity on college campuses. The teachers union also said results from states that do not allow race to be considered in college admissions are "unsettling." 

A group of major corporations, including those in tech, airline, manufacturer and retail, touted the importance of a diverse work force, saying they "seek employees who have been educated at universities with exposure to a broad array of life experiences and viewpoints, and who can bring divers perspectives and experiences to the workplace." 

Other Ivy League and highly sought after universities also came to Harvard’s defense, including Georgetown University, the Massachusetts Institute of Technology and Brown University. 

Even the National Association of Basketball Coaches weighed in on the case in support of Harvard, detailing the experiences of student athletes who "are among the most diverse groups on campus." The coaches warned that sports teams could become "a diverse island in an otherwise homogeneous student body, isolating athletes from the broader university community."

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One brief filed in support of Harvard even noted that several members of the Supreme Court, namely Amy Coney Barrett and Ketanji Brown Jackson, were beneficiaries of affirmative action and warned that the court "may be obliged to ask for her [Jackson’s] removal from the Court, if it declares that all race-based affirmative action is illegal."

Judge Ketanji Brown Jackson and Vice President Kamala Harris hug after the conclusion of an event on the South Lawn of the White House on April 08, 2022 in Washington, DC.  (Kent Nishimura / Los Angeles Times via Getty Images)

A joint brief filed by multiple education groups representing K-12 schools, asserted their "strong interest" in ensuring that Grutter "remains good law," because school districts across the U.S. "have adopted ‘mechanisms’ that ‘further the goal of bringing together students of diverse backgrounds and races." The brief, however, rebuked the claim that the case "has potential implications for K-12 schools." One notable party in the brief, the National School Boards Association, infamously called on the Biden administration to stop alleged threats and violence by parents directed toward school board members over actions that could be "the equivalent to a form of domestic terrorism and hate crimes." 

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Lawmakers, ranging from members of Congress to attorneys general weighed in on both sides of the issue. 

Over 60 Democratic members of Congress, including House Speaker Nancy Pelosi, signed onto a brief that signaled support for Harvard University because "since Grutter, segregation in K-12 educational settings has increased, and, as a result, educational inequities have worsened" which they believe renders race-conscious admissions policies necessary. The Biden administration also submitted a brief supporting the use of race in college admissions.

Speaker of the House Nancy Pelosi of Calif., speaks during a news conference, Thursday, May 19, 2022, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin)

Lawmakers on the other side of the aisle weighed in supporting Students for Fair Admissions, with a group of Republican senators and representatives, including Sen. Ted Cruz, R-Texas, and House Minority Leader Kevin McCarthy, R-Calif., writing a brief in support of SFFA that described the earlier Grutter case as a "constitutional anomaly."

"Decisions under the Fourteenth Amendment firmly establish that equal protection of the law includes the right to equal treatment regardless of one’s race. Except for race-conscious college admissions, laws and policies dividing people by race are immediately suspect," the lawmakers argued. 

Legal experts, economists and education organizations also submitted amicus briefs to the court, supporting SFFA, and asking that race not be considered in college admissions. 

Among those groups was Parents Defending Education (PDE), a parental rights organization that warned considering race in college admissions had adverse affects on K-12 schools. PDE argued the promises made in the Grutter case, including that after 25 years, considering race in college admissions would "no longer be necessary," have gone unfulfilled. 

Instead the case "spawned increasing racial discrimination and division that has reached beyond college admissions to infect K-12 schools nationwide," they wrote in their brief.  PDE argued that as long as universities are able to use race as a factor in college admissions, "K-12 schools will face and inexorable pressure to discriminate based on skin color." 

Other groups like public-interest litigation firm The Liberty Justice Center and the Defense of Freedom Institute criticized the favoritism shown to preferred groups of students, which they said ultimately harmed diversity goals on campuses. Students in the ALDC category - athletes, legacy applicants, applicants on the Dean’s Interest List and the children of faculty or staff – have a leg up in the admissions process, which the DFI brief said "casts great doubt on [Harvard’s] claim that its system of racial preferences treats applicants holistically when taking account of race." 

The Defense of Freedom Institute also claimed that diversity goals at Harvard and other similar schools are "shallow," and based solely on skin color, ignoring other forms of diversity, such as socioeconomic status.

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Former Department of Education officials, who served under Secretary of Education Betsey DeVos, criticized the existing case law which they claim led to "radically vacillating federal policy guidance … all depending on who sits in the Oval Office." The brief noted that under the Obama administration, schools were encouraged to adopt race-conscious policies, a practice that was later discouraged under the Trump administration. 

These changes in federal guidance can be confusing for schools, the brief argued, and even pose a threat of a loss of federal funding in an Office of Civil Rights action. 

Banners for Harvard Law School fly during the inauguration of Lawrence Bacow as the 29th President of Harvard University in Cambridge, Massachusetts, U.S., October 5, 2018. REUTERS/Brian Snyder 

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"Only this court can address the widespread uncertainty on the legality of the increasing use of race in American schools," the brief said. 

The Supreme Court initially agreed to hear the Harvard and UNC cases together, but later reversed course and separated the cases. The Supreme Court is set to hear oral arguments in both cases Monday. The court is expected to issue a decision on the case in 2023.