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The Supreme Court Tactic That Aims to Kill Affirmative Action

The strategy of filing against both North Carolina and Harvard was orchestrated by Edward Blum, a financial adviser who founded Students for Fair Admissions. He has spearheaded more than two dozen lawsuits challenging affirmative action practices and voting rights laws, including a case against the University of Texas at Austin that led to the Supreme Court’s most recent decision supporting race-conscious admissions policies in 2016.

The plaintiffs accused Harvard of using a subjective personal metric to discriminate against high-performing Asian Americans and to create an unspoken ceiling for them in admissions. The argument in North Carolina was more conventional, contending that the university discriminated against white and Asian applicants by giving preferences to Black, Hispanic and Native American applicants. The universities denied those accusations and defended their admissions practices.

The two-pronged attack faltered when the North Carolina case fell behind the Harvard case by about two years. A federal judge ruled for Harvard in 2019, and the appeals court affirmed that ruling in 2020, while a judge did not rule in the North Carolina case until last month — also in favor of the university.

If the justices choose to hear both cases, the court could rule in a narrow way, either upholding the admissions systems at one or the other university or both, or asking for specific fixes, which would have little relevance to higher education as a whole. Or it could rule more broadly, taking on the bigger topic of race-conscious admissions in a decision that would apply across the land.

Harvard declined to comment on the plaintiffs’ petition to the Supreme Court. The University of North Carolina did not immediately respond to a request for comment.

Apart from clearly linked companion cases, such as the University of Michigan lawsuits that led to the 2003 affirmative action decisions, the Supreme Court usually does not hear cases before an appellate decision unless they involve exceptional or urgent matters, like the Texas abortion challenges argued recently.

Such immediate review, leapfrogging an appeals court, is called “certiorari before judgment,” and is typically used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor.

Adam Liptak contributed reporting. Susan C. Beachy contributed research.

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