It is, or at least likely to be recognized as such within the next month or so by SCOTUS.
Chief Justice Roberts, for one, seemed pretty steamed by Harvard's treatment of Asian-ancestry applicants, and he's got 5 justices to his right on this.
Honestly, I would not be shocked if Justice Kagan hopped on with the majority: Quantitative practices like this—and the "social scoring" that would be taken as clear evidence of racism in almost any other context—are hard to defend under the "value of diversity" rationale.
It will be interesting to see if Gorsuch breaks with the conservative side here. He seems like a "good old boy" from the Harvard social club (he is one of 4 SCOTUS judges who went to Harvard law). Roberts is also a Harvard graduate, but he doesn't seem to be the kind of person to break with his principles on this.
I would agree with you on Kagan, but her alma mater is... Harvard Law. The last Harvard SCOTUS judge is Jackson, who has a 0% chance to rule against them here.
I think there is 0 chance any of the six conservative justices let stand practices that, again, are either facially discriminatory or have demonstrated disproportionate impact with no plausible explanation other than discriminatory intent.
The interesting question to me is whether there's a consensus position on acceptable means to "diversity" ends that pulls in Kagan or the other liberals.
Chief Justice Roberts, for one, seemed pretty steamed by Harvard's treatment of Asian-ancestry applicants, and he's got 5 justices to his right on this.
Honestly, I would not be shocked if Justice Kagan hopped on with the majority: Quantitative practices like this—and the "social scoring" that would be taken as clear evidence of racism in almost any other context—are hard to defend under the "value of diversity" rationale.