The Supreme Court will be revisiting the contentious issue of affirmative action, announcing last week they will hear two cases out of Harvard University and the University of North Carolina (UNC) involving the use of race in admissions processes. By hearing these cases, the Supreme Court will now have the opportunity to reconsider the use of affirmative action at both public and private academic institutions.
The cases against both Harvard and UNC were established after lawsuits were filed against the universities in federal court, alleging that Harvard’s undergraduate system discriminated against Asian American students in using a standard that gauges traits such as courage, kindness and likability, which some claim limited their progress in admissions.
A second lawsuit alleges that UNC discriminated against white and Asian American applicants while favoring Black, Hispanic and Native American applicants. Lower courts had ruled that each university’s applied consideration of race was legitimate in developing a more diverse student body.
The Supreme Court shares an extensive history with affirmative action. In 1978, the Supreme Court heard what would become a landmark decision in Regents of the University of California v. Bakke. Allen P. Bakke, who was denied admission to the University of California-Davis (UC Davis) Medical School, sued the university, alleging the institution’s affirmative action program led to his rejection. The court ruled in favor of Bakke, resulting in an ordered admittance for Bakke into the university, as well as the court striking down the university’s policy of reserving seats for minorities and forbade it from using race in its admission policies.
In a 2003 decision, Grutter v. Bollinger, a student named Barbara Grutter was denied admission to the University of Michigan Law School and sued the university, alleging the institution had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
The plaintiff argued that the University of Michigan used race as a predominant factor within its admissions processes, providing applicants who belong to minority groups a significantly greater chance of admission over students with similar credentials. The defendant in the case was then-University of Michigan President Lee Bollinger.
In a lower court, U.S. District Court Judge Bernard A. Friedman ruled in favor of Grutter, ruling that the admissions policies the university had in place were unconstitutional because they clearly considered race, and were “practically indistinguishable from a quota system.” In a 6-3 decision, the Supreme Court ruled in favor of Bollinger, holding that the University of Michigan Law School admissions program, which gave special consideration for racial minorities, did not violate the Fourteenth Amendment.
The latest challenge to affirmative action heard by the Supreme Court was Fisher v. University of Texas (2016), where two plaintiffs who had been denied admission to the university, both white women, alleged they were discriminated against on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.
In this case, the Supreme Court ruled 7-1—Justice Elena Kagan recused herself due to prior involvement as solicitor general—in favor of the University of Texas, holding that its race-conscious admissions program use was lawful under the Equal Protection Clause.
Since then, however, the makeup of the Supreme Court has changed drastically. In 2016, late Justices Antonin Scalia and Ruth Bader Ginsburg were still serving on the bench, as well as Justice Anthony Kennedy, who retired in 2018 and was succeeded by Justice Brett Kavanaugh.
Now, the Supreme Court comprises a 6-3 conservative majority, with Justices John Roberts, Clarence Thomas, Samuel Alito and the latest appointments of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett headlining the conservative wing. On the left lie Justices Sonia Sotomayor, Elena Kagan and the outgoing Stephen Breyer, who announced he would be retiring at the end of this term last week.
The new-look Supreme Court, according to Dr. Joshua Wilson, professor and Chair of the Political Science Department at the University of Denver, is sure to contrast from rulings in the past on this issue.
“All signs point to ruling against affirmative action,” he said.
One of those signs, Professor Wilson indicates, is how the conservative-led Supreme Court is “creating a docket chock-full of hot button conservative issues.”
The plaintiffs in both the Harvard and UNC cases, Students for Fair Admissions, have called on the justices to overrule the court’s 2003 decision, which upheld the University of Michigan’s use of race in admissions which would serve as the model for similar admissions programs throughout the country.
The plaintiffs said that the 2003 decision “endorsed racial objectives that are amorphous and unmeasurable.” In their brief, asking the Supreme Court to take their appeal, the challengers asserted, “if a university wants to admit students with certain experiences, then it can evaluate whether individual applicants have that experience. It cannot simply use race as a proxy for certain experiences or views.”
However, Harvard’s lawyers contend that “mandating race-blind admissions programs would undermine those universities’ ability to engage in the kind of individualized review that yields a class that is both diverse and excellent.” A federal court judge who ruled in favor of Harvard in this case claimed that abandoning considerations of race “would cause a sharp decline in the percentage of African American and Hispanic students.”
Should the Supreme Court overrule its 2003 decision, affirmative action programs throughout the country would become significantly vulnerable and would likely be terminated. The court is expected to hear these cases next term beginning in October.
