By Andrew Chung and Lawrence Hurley

(Reuters) – The U.S. Supreme Court on Monday agreed to hear a bid to bar Harvard University and the University of North Carolina from considering race in undergraduate admissions in a case that imperils affirmative action policies widely used to increase the number of Black and Hispanic students on American campuses.

The justices agreed to hear appeals by a group called Students for Fair Admissions, founded by anti-affirmative action activist Edward Blum, of lower court rulings that upheld the programs used by the two prestigious universities to foster a diverse student population. The cases give the court, with its 6-3 conservative majority, a chance to end such policies.

The lawsuits accused the universities of discriminating against applicants on the basis of race in violation of federal law or the U.S. Constitution. Blum’s group accused Harvard of discriminating against Asian American applicants. It accused UNC of discriminating against white and Asian American applicants.

The universities have said they use race as only one factor in a host of individualized evaluations for admission without quotas, and that curbing the consideration of race would result in a significant drop in the number of Black, Hispanic and other underrepresented students on campus.

U.S. conservatives long have opposed affirmative action programs used in such areas as hiring and student admissions to address past discrimination against minorities.

The case represents another signal of an assertiveness among the conservative justices who hold a 6-3 majority, demonstrating a willingness to rule on the most divisive issues. The justices are already set to rule by the end of June in blockbuster challenges to abortion rights and gun control.

Affirmative action has withstood Supreme Court scrutiny for decades, including in a 2016 ruling https://www.reuters.com/article/usa-court-affirmativeaction-idINKCN0ZA08C involving a white student, backed by Blum, who challenged a University of Texas policy, though the justices have narrowed its application.

The Boston-based 1st U.S. Circuit Court of Appeals in 2020 ruled that Harvard’s consideration of race was not “impermissibly extensive” and was “meaningful” because it prevented the racial diversity of its undergraduate student body from plummeting. A federal judge in 2019 also ruled in favor of the Ivy League school.

Harvard University President Lawrence Bacow said the Supreme Court’s decision to hear the case “puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities.”

“Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all,” Bacow said, adding: “Harvard does not discriminate.”

The justices took up the UNC dispute even though a lower federal appeals court had yet to complete its review of that case. A federal judge in 2021 found that minority students “by virtue of our Nation’s struggle with racial inequality” are less likely to be admitted on criteria that “ignore” the racial barriers they face.

“As the trial court held, our process is consistent with long-standing Supreme Court precedent and allows for an evaluation of each student in a deliberate and thoughtful way,” said Beth Keith, UNC’s associate vice chancellor for university communications.

‘NEW DISCRIMINATION’

Blum praised the Supreme Court’s decision to hear the matter.

“In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others. Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences,” Blum said.

Blum’s group sued Harvard in 2014, accusing it of violating Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, color or national origin under any program or activity receiving federal financial assistance. Harvard is a private university founded in 1636 and located in Cambridge, Massachusetts. It receives federal funds.

The group also sued UNC in 2014, accusing it of impermissibly using race as the main factor in admissions in violation of the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law. UNC, located in Chapel Hill and chartered in 1789, is North Carolina’s flagship public university.

The Supreme Court first upheld affirmative action in college admissions in a landmark 1978 ruling in a case called Regents of the University of California v. Bakke that held that race could be considered as a factor but racial quotas could not be used.

Blum’s group asked the Supreme Court to overturn a 2003 Supreme Court ruling in a case called Grutter v. Bollinger involving the University of Michigan Law School that held that colleges could consider race as one factor in the admissions process because of the compelling interest of creating a diverse student body.

The Supreme Court’s conservative majority has widened since it ruled 5-4 in favor of the University of Texas in 2016, with now-retired conservative Justice Anthony Kennedy joining four liberal justices. The addition of three justices appointed by Trump moved the court rightward.

President Joe Biden’s administration has backed Harvard after his predecessor Donald Trump supported Blum’s lawsuit.

The case is expected to be heard during the court’s next term, which begins in October and ends in June 2023.

(Reporting by Andrew Chung in New York and Lawrence Hurley in Washington; Additional reporting by Nate Raymond; Editing by Will Dunham)

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