Texas attorney general backs challenge to Harvard’s affirmative action policies at Supreme Court

Texas Attorney General Ken Paxton told the Supreme Court on Tuesday that the justices got it wrong in 2016 when they upheld the University of Texas’ affirmative action practices, as state officials are now backing a lawsuit against Harvard’s use of race in admissions.

“Abigail Fisher was right,” Paxton wrote in a provocative “friend of the court” filing, referring to the White student who was denied admission and lost her case against the University of Texas at Austin five years ago.

“(T)his Court permitted the University’s administrators to deny Fisher the Constitution’s promise of racial equality in favor of the administrators’ subjective views of racial equity,” Paxton said. “The University of Texas was wrong.”

The state of Texas, along with an array of conservative advocacy groups such as the Pacific Legal Foundation, have urged the justices to overrule precedent that permits consideration of race as one of many factors in screening students for admission. The practice has enhanced campus diversity nationwide and especially boosted opportunities for Black and Hispanic applicants.

If the high court agrees to hear the case, which likely will not be known for months, it will spark a national showdown over educational practices first endorsed by the justices in 1978 and affirmed in 2003.

Students for Fair Admissions, which sued Harvard in 2014 and has since lost in lower courts, asserts that as Harvard College favors certain minority students, it unlawfully discriminates against Asian Americans by stereotyping them and limiting their numbers in the freshman class.

Although tensions surrounding the pending appeal intensified with this round of “friend of the court” filings, the case of Students for Fair Admissions v. Harvard is still at an early stage. Harvard’s initial response is not due until May 17.

Harvard officials have defended their practices as consistent with past high court cases. They said in a statement last month when Students for Fair Admissions petitioned the justices that Harvard “remains deeply committed to expanding opportunity and creating a diverse community … essential to fulfilling our mission of educating engaged citizens and leaders.”

If the justices agree to take up the appeal, it would likely not be heard until late 2021, with a decision expected in 2022.

Those challenging Harvard say a milestone 2003 ruling in a University of Michigan affirmative-action case, Grutter v. Bollinger, should be struck down. When the Supreme Court in 2016 rebuffed arguments from Fisher in favor of the University of Texas at Austin, it relied on that 2003 precedent.

Paxton knocked that 2016 ruling, and the state’s own university, at every turn.

He told the justices in his filing: “Today, the University’s admissions practices stand as a testament to failures by this Court and lower courts to enforce Grutter’s admonition that ‘race-conscious admissions policies must be limited in time.’ And while Grutter expressed the hope that ’25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,’ the zeal with which the University of Texas has embraced systematic racial discrimination in admissions illustrates how elite universities will not stop discriminating based on race without this Court’s intervention.”

The University of Texas at Austin media office did not immediately respond to requests for comment about Paxton’s filing.

Abigail Fisher’s case had been engineered by conservative advocate Edward Blum, a longtime opponent of racial policies, who also put together the Students for Fair Admissions organization suing Harvard.

When lower US court judges sided with Harvard, they rejected the assertions of bias, including the claim that Asian-American applicants are stereotyped and penalized.