Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., cert granted, U.S. S.Ct. No. 20-1199 (U.S. Jan. 24, 2022); Students for Fair Admissions, Inc., v. Univ. of North Carolina, cert granted, U.S. S.Ct. No. 21-707 (U.S. Jan. 24, 2022)

The AAUP joined, with thirty-nine other higher education associations, an amicus brief filed on August 1, 2022, in the US Supreme Court that supports the affirmative action admissions policies of Harvard and the University of North Carolina–Chapel Hill, which considered race and ethnicity as part of their holistic review of prospective students. The amicus brief argues that a diverse student body is essential to the educational objectives of colleges and universities. It also emphasizes the importance of academic freedom, which protects the rights of colleges and universities to accept students from a range of racial backgrounds. It points out that if race is excluded from admissions decisions, then the perspective of applicants, particularly Black Americans, for whom racial identity plays a major role in their lives will be silenced or ignored.

The current case is the most recent in a series of lawsuits aimed at eliminating race as a factor that universities can consider when choosing whom to admit. In joining the brief, the AAUP continued its many years of advocating in favor of affirmative action in higher education through amicus briefs emphasizing the educational value of diversity in Supreme Court cases from Regents of the University of California v. Bakke in 1978 to Fisher v. Texas in 2016 and through AAUP policy. The brief, authored by the American Council on Education, echoes this emphasis on the importance of affirmative action in higher education: “Amici believe that a diverse student body is essential to important educational objectives of colleges and universities.” It recognizes that “applicants’ racial or ethnic identities have affected their path to higher education and . . . their life experiences will enrich the student body and the university as a whole.”  

The importance of academic freedom as supporting the affirmative action admissions policies was highlighted. The brief recognizes that academic freedom under the “First Amendment guards the right of teachers and students ‘to inquire, to study, and to evaluate.’” Thus, “the First Amendment affords colleges and universities substantial deference on matters involving academic judgment and, as a result, safeguards the role of America’s colleges and universities as incubators for creative thought, productive dialogue, and innovative discovery. It is the pluralism of institutions across the country that makes our system of higher education the greatest in the world.”

The brief also explains the perverse results of the argument advanced by the plaintiffs, which would create a “dual-track admissions that advantage one group over another based on applicants’ racial or ethnic identity. Along one track, many applicants will present, and have considered, the full range of their background and lived experiences. On the other, applicants whose lives have been indisputably molded by their race or ethnicity must leave out a key part of their story or present it and have it ignored.” And it emphasized that “Black Americans, by no slim margin, have the most to lose from an admissions process which intentionally removes racial experience and identity from considerations for admission.”