The Supreme Court will hear arguments in a pair of cases Monday about whether the use of race in college admissions decisions at Harvard College and the University of North Carolina is unconstitutional or violates a federal anti-discrimination law.
The cases are the most prominent of several this term in which the conservative-dominated court will consider the role of race in federal law. What the justices say in more than two hours of arguments on these higher education cases could signal the court’s approach to anti-discrimination laws in other areas, like employment.
Legal experts expect the 6-3 conservative majority at the high court to issue rulings before the end of the term at the end of June that curtail the use of race in admissions and possibly overturn a 2003 decision that had paved the way for such policies.
Jonathan Feingold, a law professor at Boston University School of Law who studies race and the law, said the court will probably use the two cases to overturn its ruling in Grutter v. Bollinger. That decision found the use of race in college admissions did not violate the equal protection clause of the 14th Amendment or the Civil Rights Act of 1964.
“It’s very likely that a majority of the current right-wing justices on the court will end affirmative action as we know it in higher education, given the majority’s recent comfort in overturning well-established precedent,” Feingold said.
Feingold and other experts point to the decision on abortion last term to show the conservative wing of the court might not be shy in overturning precedents they don’t agree with. In Dobbs v. Jackson Women’s Health Organization, the justices voted to overturn a constitutional right to an abortion first established in the 1973 ruling in Roe v. Wade.
“This court doesn’t really seem interested in baby steps. It seems quite comfortable in leveraging its raw power to shape the law in the way it wants,” Feingold said.
The admissions policies at Harvard and UNC would likely survive under existing precedents, which require the colleges to use race only as one part of a holistic assessment of potential students, those experts said.
Fresh review
Sarah Wake, a partner at McGuire Woods who specializes in higher education law, said the case will hinge on whether the justices find that colleges and universities have a “compelling interest” in creating a diverse student body that would justify the limited use of race in admissions — and whether Harvard and UNC’s policies satisfy that test.
Wake said it’s possible the justices write an opinion broadly enough to “have a carryover in the employment context, in terms of how willing employers are to consider race in the application and employment process.”
The impact of the decision will depend on the approach of at least two of the court’s conservatives. Wake said she will be interested in how Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett approach the case.
Roberts has written in the past about limiting the government’s use of race, Wake said, but has also preferred rulings on major issues before the court that avoid more sweeping impacts on the law. Barrett also has not written about affirmative action in her short time as a judge or justice, Wake said.
On Monday, the justices will hear from six attorneys representing three different parties and the U.S. government.
Students For Fair Admissions, the group that launched the cases, argued in its brief that the admissions policies violate both the Civil Rights Act and the 14th Amendment. The group argues that the Supreme Court’s 1954 decision in Brown v. Board of Education, which desegregated schools, means universities could not use race at all in admissions.
“The same Fourteenth Amendment that required public schools to dismantle segregation after Brown cannot be defeated by the whims of university administrators,” the group’s brief stated.
The group challenged the admissions policies at both universities in district court in 2014. A federal judge and the 1st Circuit Court of Appeals ruled in Harvard’s favor, finding the admissions policy passed muster. Separately, a district judge sided with UNC in 2020.
Then the group brought both cases to the Supreme Court, which originally consolidated them for arguments. Justice Ketanji Brown Jackson committed to recusing herself from the Harvard case during her confirmation hearings, as she served on the school’s board of overseers.
After Jackson’s confirmation, the court divided the cases for the purpose of arguments; Jackson will still participate in the UNC case.
Long history
Damon Hewitt, the president of the Lawyer’s Committee for Civil Rights, which will argue on behalf of students in the Harvard case, said the case is part of a long line of challenges to the use of race in admissions.
“The law is settled, and what this case is really about as far as the legal battle is a Dobbs play,” Hewitt said, referring to the abortion decision from June. “Can these litigants convince a majority of this Supreme Court to overturn a precedent that they did not like?”
The universities have argued their admissions policies use race only as one of multiple factors when deciding whether to admit a student. Harvard argued that the 14th Amendment does not require universities to disregard race and the school does not discriminate against potential students.
Several dozen Democratic House members, led by Rep. Robert C. Scott of Virginia, argued in a brief in the case that Congress has had decades to weigh in against the use of affirmative action in college admissions and has not considered legislation to curtail it.
In their brief, the lawmakers point out Congress has considered legislation that would “enhance the rights of minority students and prevent the academic achievement losses and educational inequities that have been fostered by recent trends toward resegregation.”
The bill the Democrats cited, the Equity and Inclusion Enforcement Act, passed the House as HR 2574 in 2019 but withered in the Republican-controlled Senate. Democrats introduced a similar House bill this Congress, HR 730, but the House has not taken action on it.
“This reinforces that Title VI, like the Equal Protection Clause, should permit narrowly tailored, race-conscious measures to attain diversity on university campuses. Such measures remain true to the promise of Brown,” the brief stated.
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