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During its 2021-2022 term, the US Supreme Court further limited the federal government’s ability to respond to climate change, expanded access to firearms, and overturned Roe v. Wade. So it’s no wonder that all eyes were on the Court and its justices when the current term began on October 3.
For this round, the Court has chosen to take up a pair of cases, Students for Fair Admissions, Inc. v. University of North Carolina (UNC) and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, that challenge affirmative action in admissions programs — a topic the Court has already addressed numerous times. Many legal experts predict that the conservative majority on the Court will bring an end to affirmative action in education as we know it.
What is at issue in Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions v. Harvard?
For more than 40 years, the Supreme Court has held — through precedent including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas — that race is a permissible consideration among multiple factors in the higher education admissions processes. That consideration of race is exactly what is at issue in the two cases the Court is considering this term.
In its appeal to the Supreme Court, Students for Fair Admissions (SFFA), a legal advocacy group that “[believes] that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional” is seeking to eliminate the use of race in university admissions processes. SFFA alleges that Harvard has violated Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants, participating in what’s known as “racial balancing.” It similarly claims that UNC has violated Title VI and the 14th Amendment by considering race in its admissions process.
How have Harvard and UNC responded to SFFA’s claims?
In their briefs, both Harvard and UNC submit that their admissions programs are in line with the longstanding precedent that has been prescribed by the Supreme Court in multiple cases assessing the use of race in admissions programs. More specifically, both universities argue that there is a compelling governmental interest in having a diverse student population to achieve racial diversity’s educational benefits. UNC, an institution that had actively participated in segregation, even expressed that it has attempted other race-neutral methods for advancing student diversity to no avail, and that its race-conscious program is the only effective means to achieve diversity with its student body.
Neither of these cases just magically appeared before the Supreme Court at the start of this term. Typically, as happened with the lawsuits against Harvard and UNC, claims have to travel through multiple levels of our courts. Back in 2014, both of SFFA’s lawsuits were filed and heard in lower-level district courts. The United States District Court for the District of Massachusetts ruled in favor of Harvard, and the United States District Court for the Middle District of North Carolina similarly ruled in favor of UNC. Subsequently, both cases were appealed to the respective circuit courts, and Harvard, again, prevailed in the First Circuit. The case against UNC went to the Fourth Circuit, but the Supreme Court granted certiorari, or agreed to review both matters, before a ruling was ultimately decided in the Fourth Circuit.
What is the agenda of Students for Fair Admissions?
The architect of these lawsuits and founder of SFFA is Edward Blum, the individual behind some of the most high-profile efforts to undermine voting rights and affirmative action policies. This is not Blum’s first attempt to get rid of affirmative action in higher education. In 2005, he founded a group known as the Project on Fair Representation, and went on to orchestrate two lawsuits against the University of Texas at Austin on behalf of plaintiff Abigail Fisher, a white applicant who alleged that she was racially discriminated against when denied admission to the university.
Fisher and Blum, who both currently sit on SFFA’s board of directors, were handed defeat in Fisher v. University of Texas, a landmark case that joined an existing string of Supreme Court rulings that have preserved the use of race-conscious policies in admissions programs. After losing in Fisher, Blum decided he “needed Asian plaintiffs,” subsequently founding SFFA as a mechanism to file the lawsuits that are now before the Court.
Blum’s crusade extends beyond strategic, anti-affirmative action lawsuits. He has also set his sights on rolling back voting rights protections. As detailed by the ACLU, Blum — after a failed congressional bid in the early 1990s — levied multiple voting rights challenges that made their way to the Supreme Court. Most notably, he was behind Shelby County v. Holder, the case that gutted section five of the Voting Rights Act, which required states and localities with a history of racial discrimination to get permission from the federal government to implement changes to their voting laws.
What case have champions of affirmative action made in response?
About 60 amicus briefs have been filed in support of Harvard and UNC by other universities, civil rights and gender justice groups, businesses, professors, and research organizations. Attorneys for the Biden administration implored the Court to uphold Grutter and underscored how much universities have relied on the Court’s existing precedent to shape their admissions programs. Civil rights groups like the NAACP Legal Defense Fund argued that eliminating race-conscious admissions would only exacerbate existing racial inequalities in educational systems. Professors discussed how “all students benefit from a diverse student body.” Professional organizations like the American Psychological Association wrote that underrepresentation causes academic harm and negatively affects all students.
A ruling that makes race-conscious admissions practices unconstitutional — or even that further narrows the weight that race can be given — doesn’t only have worrisome implications for universities; employer hiring practices and diversity in the workplace could dramatically shift if affirmative action in higher education is struck down. Given that landscape, lower courts could look at other precedents where the Court has found race to be a permissible factor under federal antidiscrimination statutes and decide they no longer apply. Doing so could potentially undermine employer recruitment and diversity initiatives and hinder the pipeline of diverse talent.
What do experts think the Court will decide?
Of course, we can’t say for sure what the Court will decide until it does just that. But this Court’s overwhelming conservative majority has made it easier to predict case outcomes. In a short period, the conservative justices on this Court have handed down landmark cases that have sparked outrage, protests, and ballot initiatives across the country.
It’s safe to say that Blum may have finally landed in front of a sympathetic audience. Since the Court upheld the University of Texas’s affirmative action program in 2016 in Fisher, four new justices — three conservatives, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, and one liberal, Ketanji Brown Jackson — have joined the Court. This composition has cemented a 6-3 conservative stronghold that has left little room for swing votes and foreshadowed many of the conservative outcomes we’ve seen in recent years.
During the five-hour oral arguments in this case, the conservative justices previewed their disapproval of affirmative action policies by zooming in on the question of when diversity will finally be achieved. "I don’t see how you can say that the program will ever end. Your position is that race matters because it's necessary for diversity, which is necessary for the sort of education you want,” Chief Justice John Roberts said. “It's not going to stop mattering at some particular point; you're always going to have to look at race because you say race matters to give us the necessary diversity."
Justices Kavanaugh and Barrett repeatedly referenced Justice Sandra Day O’Connor’s 2003 Grutter opinion, in which she anticipated that affirmative action would no longer be necessary in 25 years. Justice Clarence Thomas, who, until recently, had notoriously remained silent during oral arguments, used the opportunity to express that he has no idea what diversity means and stated, “I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation too.”
Liberal justices, on the other hand, were concerned about whether diversity can effectively be achieved without any consideration of race. Justice Jackson, the newest member of the Court, who recused herself from the Harvard case because she is an alum and six-term member of the university’s board of overseers, was actively engaged in oral arguments for the UNC case. She pointed out that eliminating the consideration of race in admissions programs would restrict minority applicants, while special considerations like legacy status would still be permitted.
In a pair of hypotheticals, Justice Jackson compared a white applicant who has the opportunity to be a fifth-generation graduate from UNC to an African American applicant whose family, because of slavery, didn’t always have the opportunity to attend UNC; in being given that opportunity, the second applicant wants to honor their family’s legacy by being the first to attend. As she noted, “The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to because his story is in many ways bound up with his race and with the race of his ancestors.”
The Court will issue its decision on these cases by July of this year. In a world where the Supreme Court grants SFFA the relief it seeks, applicants won’t be able to share the backgrounds and experiences they have that are directly connected to their racial identity. In a society where there are efforts to ban books that examine race relations, where instructors are threatened for using their classroom as a venue to discuss literature and ideas on race, a court-imposed ban on the consideration of race in admissions would be yet another blow to fostering diversity in schools.
It remains unclear what, if anything, will be salvageable from the Court’s ultimate ruling on affirmative action. But in this waiting period, some universities are thinking more intentionally about their role in and beyond this fight, and what holistic admissions programs should look like moving forward.
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