What’s on Tap: Supreme Court to Consider Landmark Affirmative Action Cases

When the U.S. Supreme Court begins its new term next month, the justices will hear two potential landmark cases involving affirmative action. Both cases, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, involve the use of race in the undergraduate admissions process.

The cases were initially consolidated for oral argument. However, following the addition of Justice Ketanji Brown Jackson, who must recuse herself from the Harvard case because she served on the university’s board of overseers, the two cases were decoupled so that Justice Jackson may consider the University of North Carolina dispute.

Conservative Majority Poised to Reverse Course

The primary issue in both cases is whether the Court should reverse its decision in Grutter v. Bollinger, 539 U.S. 306 (2003). In the 2003 decision, the Court held that the University of Michigan Law School’s race-sensitive admissions program was narrowly tailored because the consideration of race was merely one factor in the decision-making process and individualized consideration was given to each applicant.

The composition of the Court has changed dramatically since it last upheld the use of affirmative action in Fisher v. Univ. of Tex. at Austin, an opinion which was authored by recently retired Justice Anthony Kennedy. In agreeing to revisit Grutter v. Bollinger, the Court’s conservative majority appears poised to overrule the landmark decision and ban the use of race-conscious admissions programs.

Issues Before the Supreme Court

Both cases involve long-running disputes brought by Students for Fair Admissions, whose mission is to “restore colorblind principles to our nation’s schools, colleges and universities.” In the Harvard case, the group contends that the university’s admissions policy discriminates against Asian American applicants, putting them at a disadvantage as compared to white, black, or Hispanic applicants. In the UNC case, Students for Fair Admissions allege that the university’s consideration of race in its admissions process runs afoul of both Title VI and the 14th Amendment’sequal protection guarantees (which apply given UNC’s status as a public institution).

In both cases, the lower courts upheld the admissions policies, and Students for Fair Admissions appealed. The Court granted certiorari and will hear oral arguments on October 31, 2022. In Students for Fair Admissions Inc. v. President & Fellows of Harvard College, the justices have agreed to consider the following questions: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

The issues before the Court in Students for Fair Admissions v. University of North Carolina are: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.