U.S. Attorney General Merrick Garland makes a statement to the Department of Justice in Washington on April 26, 2021.

Almond Ngan | Reuters

The Supreme Court on Monday asked President Joe Biden’s Department of Justice to weigh a pending positive action case at Harvard University, signaling the court’s interest in a dispute that could reduce the widespread use of race in college admissions.

In an unsigned order, the judges requested acting Attorney General Elizabeth Prelogar to submit a brief expressing “the views of the United States.” Such a step is often the prelude to the eventual decision by the court to hear a case, if not always.

Monday’s move also has the potential to delay the litigation, even if the court eventually votes to look into the case. If the court approves its term of office beginning in October, a decision is likely by June 2022. If the court does not hear the case until the next term, the decision may not be published until the summer of 2023, requiring the votes of four judges to open a case.

The dispute known as Students for Fair Admissions v. President and Fellows of Harvard, No. 20-1199, was led by a group led by anti-affirmative action activist Edward Blum. Students for Fair Admissions said Harvard’s restricted consideration of the race of its applicants discriminates against Asian applicants in favor of white applicants. This violates Title VI of the Civil Rights Act of 1964, they argue.

A federal appeals court dismissed the group’s arguments in November, ruling that their “limited use of the breed in their admissions process to achieve diversity” was consistent with Supreme Court precedents. In February Students for Fair Admissions petitioned the Supreme Court asking judges to hear their appeal against the decision.

The Supreme Court has repeatedly upheld the limited use of positive action, despite ignoring the matter since President Donald Trump appointed three new Conservative members that could change the court’s view of the practice. In addition, presiding judge John Roberts, who exercises some influence over the court, has expressed views that are strongly opposed to the affirmative actions.

William Consovoy, an attorney for Blum’s group, warned of dire consequences if the US Court of Appeal’s decision were upheld. In his petition, he said that when this happens, “universities can use races even if they impose racial punishments, make backward racial adjustments, ignore critical mass, avoid sunset regulations, and fail to find significant drawbacks from race-neutral alternatives”.

Harvard has vehemently defended its practices. On a website dedicated to the lawsuit, Harvard described the challenge as “politically motivated” and said it could cripple the ability of colleges and universities across the country to create the diverse communities essential to their educational missions and the success of their students. . “

Biden’s Justice Department is likely to ask the judges not to hear the case and uphold the opinion of the lower court. The administration has withdrawn steps already taken under Trump to combat the use of race in admissions.

In February, the Justice Department dropped a lawsuit against Yale over the admissions practices of this elite university. Under Trump, the ministry claimed that Yale discriminated against Asian and white applicants.

The Justice Department and the Attorney General’s Office did not respond to a request for comment.

The Supreme Court last considered positive action in 2016 when it approved, by 4-3 votes, the use of a Personal Achievement Index that included the breed in the admissions process at the University of Texas at Austin.

The now-retired Judge Anthony Kennedy, who gave the court’s opinion on the case, warned that the positive action policy would likely require continued refinement.

“A university deserves considerable honor in defining those intangibles, such as student diversity, that are central to its identity and educational mission,” wrote Kennedy. “But it remains an ongoing challenge for our nation’s educational system to reconcile the pursuit of diversity with the constitutional promise of equality and dignity.”

Subscribe to CNBC Pro for the live TV stream, deep insights and analysis of how to invest over the next president’s term.