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81 Republican Lawmakers File Amicus Brief Supporting SFFA in Harvard Affirmative Action Lawsuit

The Supreme Court will take up SFFA's lawsuit against Harvard and the University of North Carolina in the fall. The suit seeks to end affirmative action in higher education.
The Supreme Court will take up SFFA's lawsuit against Harvard and the University of North Carolina in the fall. The suit seeks to end affirmative action in higher education. By Camille G. Caldera
By Rahem D. Hamid and Nia L. Orakwue, Crimson Staff Writers

More than 80 Republican lawmakers filed an amicus brief with the Supreme Court on Monday supporting anti-affirmative action group Students for Fair Admissions’ lawsuit against Harvard and the University of North Carolina.

The lawmakers, including Senate Minority Leader Mitch McConnell and House Minority Leader Kevin O. McCarthy, urged the Supreme Court to rule in favor of SFFA and ban affirmative action in higher education.

The brief advocates for the court to overturn Grutter v. Bollinger, the landmark 2003 case that permitted the University of Michigan Law School to use race as a factor in its admissions process. Two Harvard College alums, Senator Thomas B. Cotton ’99 and Rep. Elise M. Stefanik ’06, also signed on to the brief.

“We hold diverse views about educational policy,” the lawmakers wrote. “But we all agree that no American should be denied educational opportunities because of race.”

The brief calls the Grutter case “a constitutional anomaly” and argues that race-conscious admissions policies “are untrue to the Constitution’s guarantee of equality under law.”

“It flies in the face of decades of decisions holding that ‘racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals,’” the lawmakers argue.

The lawmakers called Harvard and UNC’s admissions practices “severely disappointing” and “part of a growing trend of laws and policies singling out Asian-Americans for special burdens.”

“Race-conscious admissions decisions inflict a heavy toll on Asian-American students,” the brief reads. “Treating them differently because of their race is a stark departure from equal protection decisions issued early on by this Court.”

“Asian-Americans are increasingly victimized by discriminatory practices,” it continues.

Harvard denies the claims. On its website, the school notes that 23 percent of the admitted class of 2022 were Asian American — a figure that has grown since 2010.

In a statement after SFFA filed its first major brief with the Supreme Court since the case was taken up, Harvard spokesperson Rachael Dane wrote that the school “will continue to vigorously defend its admissions practices.”

“More than 40 years of Supreme Court precedent have held that race can be one of many factors considered in college admissions, recognizing the importance of these policies to create diverse educational communities that benefit all students,” she wrote at the time. “In an increasingly diverse workplace and world, colleges must have the ability to create diverse learning communities needed to prepare students to succeed.”

Dane declined to comment on the amicus briefs.

SFFA first sued Harvard in 2014, alleging that the College’s race-conscious admissions process violates Title VI of the Civil Rights Act of 1964, which prohibits institutions that receive federal funds from discriminating “on the grounds of race, color, or national origin.” Two lower courts previously ruled in Harvard’s favor before SFFA appealed the case to the Supreme Court, which agreed in January to take up the lawsuit alongside a similar one against UNC.

The brief argued that the Supreme Court has explicitly banned racial discrimination in K-12 schools and institutions of higher education must be held to the same standards.

“The same degree of clarity has eluded the Court in its consideration of race-conscious admissions policies in higher education,” the brief reads.

The inclusion of the UNC suit also introduces the question of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution since UNC is a public institution.

“If Grutter is overruled, as we urge, then the Equal Protection Clause would disallow the supposedly ‘holistic’ use of race in college admissions,” the brief reads.

“Without Grutter to prop them up, Harvard’s admissions policies would offend Title VI insofar as they take into account an applicant’s race,” it adds.

More than 30 other entities also filed supporting briefs by deadline on Monday, including the states of Texas and Oklahoma and former U.S. Attorney General Edwin Meese III.

Edward J. Blum, founder and president of SFFA, praised the number of filings in an emailed statement.

“It is remarkable how our small membership organization has galvanized so many allies willing to come forward to add their voices to this important legal endeavor,” Blum wrote. “SFFA is greatly honored and appreciative.”

Harvard and UNC’s responses to SFFA are due to the Supreme Court by July 25.

Correction: May 11, 2022

A previous version of this article incorrectly stated Edward J. Blum is the co-founder of the anti-affirmative action group Students for Fair Admissions. In fact, he is the sole founder of the group.

—Staff writer Rahem D. Hamid can be reached at rahem.hamid@thecrimson.com.

—Staff writer Nia L. Orakwue can be reached at nia.orakwue@thecrimson.com.

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