The 2021-2022 Supreme Court term was a doozy. First, there was that embarrassing leak of a draft opinion. Then, the Court overturned Roe v. Wade, ignoring precedent and setting back women’s rights by 50 years. Other big cases decided by the Court ranged from gun rights to the right of a coach to pray after a football game.
Regardless of where you stand on these cases, I think we can agree that the current Supreme Court is causing tsunami-like waves. And more upheaval may be coming in the Court’s upcoming term that started this month.
Specifically, the Supreme Court has scheduled arguments in two cases that puts affirmative action in college admissions on the chopping block. The two cases are Students for Fair Admissions, Inc. v. President & Fellows of Harvard, and Students for Fair Admissions, Inc. v. University of North Carolina.
The plaintiff in each case is Students for Fair Admissions, Inc., (SFFA) an anti-affirmative action organization. Two separate lawsuits were filed. SFFA sued two of the oldest institutions of higher education in the United States, Harvard and the University of North Carolina.
In its lawsuit against Harvard, SFFA alleged Harvard’s admission policy violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants. In its lawsuit against University of North Carolina (UNC), SFFA alleges the university’s admission process violates the 14th Amendment. They accuse the university of using race as a factor in admissions. SFFA’s goal in the two cases is to have the Supreme Court overturn precedent that allows for affirmative action in university admissions.
Harvard and UNC each have a policy that allows the use of race as one of the factors the university considers when a student applies for admission. However, Harvard and UNC each deny their affirmative action policies are discriminatory. They argue that their policies are necessary to achieve diversity. District courts in each of the lawsuits agreed with the universities.
And The Verdicts Are…
In the Harvard lawsuit, the United States District Court for the District of Massachusetts ruled in favor of Harvard after a 15-day bench trial. The court ruled that while Harvard’s admission policy was “not perfect,” it met the standards required under legal precedent for using race as a factor in admissions. On appeal, the U.S. Court of Appeals for the First Circuit affirmed the district court’s ruling.
In the UNC lawsuit, the United States District Court for the Middle District of North Carolina ruled in favor of UNC after a 8-day bench trial. SFFA appealed to 4th Circuit Court of Appeals. However, before the 4th Circuit made its ruling, SFFA filed a writ of certiorari with the Supreme Court. This was done so that the UNC case could be heard with the Harvard case.
On January 24, 2022, the Supreme Court granted writ in each. The Court originally consolidated the two cases for oral arguments. But Justice Ketanji Brown Jackson recused herself from the Harvard case, because she sits on the Harvard Board of Overseers. The Supreme Court thus separated the two cases so that she could participate in the UNC case. The Court will hear oral arguments in each case on October 31, 2022.
Background of University Admission Policies and Affirmative Action
In the 1960s, universities began to focus on increasing the racial diversity of their student bodies. One of the ways to achieve diversity is through affirmative action admission policies. In a series of six cases beginning in 1978, the Supreme Court has ruled on the constitutionality of affirmative action in university admissions policies.
Under the holdings in these cases, universities can use race as a factor when considering applicants for admission. This does not mean that schools can use quotas or mathematical formulas to achieve diversity. However, the Supreme Court has weighed in on this. Admission policies that allow a university to consider race as a factor to encourage a diverse student body are constitutional. So long as a university’s affirmative action policy requires the individualized consideration of each applicant. But race or ethnicity can also be used as a plus factor,. If so, then the policy will pass constitutional muster under the Court’s strict scrutiny test.
Affirmative Action in Colleges Leads to Workplace Diversity
University affirmative action plans that allow race to be used as a factor in its admissions have the goal of increasing the racial diversity of its student-body. Numerous amicus briefs have been filed with the Supreme Court advocating for the use of race to increase diversity on college campuses. Civil rights groups, university professors, teacher unions, and more than 80 US companies have filed amicus briefs supporting affirmative action. The use of race in college admission policies as a means to increase to diversity is thus justified.
Companies such as American Express, Apple, Microsoft, Procter and Gamble , General Electric, and others argued in favor. They told the court they rely on colleges and universities to cultivate racially diverse student bodies. This in turn yields pools of diverse highly educated job candidates. In their amicus brief to the Court, the companies assert that “[t]he government’s interest in promoting student-body diversity on university campuses remains compelling from a business perspective.” The interest in promoting student-body diversity at American’s universities has, if anything, grown in importance.
How will the Supreme Court rule?
Experts predict there is very real possibility that the current Supreme Court will ignore the precedent the Court has established over the last 25 years. Instead, they contend the Court will rule that affirmative action is unconstitutional under the Equal Protection Clause of the 14th Amendment. The mere fact that the Supreme Court chose to hear the two cases is telling. It indicates that the current conservative majority of the court wants to change the law surrounding affirmative action.
The Cascade Effect
As an instructor of employment law, I am keeping a close eye on the two cases. If the Supreme Court rules that university affirmative action plans are unconstitutional and are prohibited under Title VI of the Civil Rights Act of 1964, corporate diversity programs may also be at risk.
Dr. Robin E. Clark
Clinical Assistant Professor of Business Law