About seven years ago, a lawsuit filed in federal court in Boston boldly called for “the outright prohibition of racial preferences in university admissions.” A parallel case was filed the same day in North Carolina, seeking the same goal.
A news story at the time noted that affirmative action in the selection of college entrants was entering “a new chapter,” adding that it was “intended to be the last one.”
This morning in Washington, the Supreme Court gave the strongest hint yet that the end may, indeed, be in sight.
In two orders, the Court accepted for review both of those cases filed in November 2014 – one against Harvard College, the nation’s oldest, and the other against North Carolina’s flagship state university in Chapel Hill. The Court had the option of avoiding review, as the Biden Administration urged it to do after the Justices asked for its views. The federal government’s views, of course, are not binding on the Court.
By taking on the controversy, the Court put itself in the middle of the national discourse on racial inequality in public policy – a discourse that, this year, will be a prominent political campaign issue leading up to national elections in November.
The new appeals were filed by Students for Fair Admissions, a conservative group that was created specifically to bring cases like these to challenge racial quotas and preferences. Each appeal asked the Court this question:
“Should this Court overrule Grutter v. Bollinger…and hold that institutions of higher education cannot use race as a factor in admissions?”
Each case also asks a second question, related to the specifics of each case.
The Grutter decision, issued in 2003 by a 5-to-4 vote, was the Court’s strongest decision allowing colleges and universities to promote the goal of racial diversity among their students, by using race as one among a series of individual characteristics that determine who would be admitted. The ruling upheld the process of choosing first-year students at the University of Michigan Law School.
By the time the Court made that ruling, it had been a quarter century since the Court’s famous decision in Regents of the University of California v. Bakke had first established that race could be used constitutionally in admissions decisions. Justice Sandra Day O’Connor, who wrote the majority opinion in the Grutter case, relied upon the Bakke precedented and noted the passing of 25 years. Then, she offered sort of a prediction:
“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in racial diversity] approved today.”
Among the Justices serving with her in 2003, only Justices Stephen G. Breyer and Clarence Thomas remain on the Court. Breyer joined in her majority opinion, Thomas dissented.
As the Court’s membership changed after the Grutter decision, that precedent was narrowed somewhat. In two separate rulings, in 2013 and 2016, involving racial factors in choosing the entering class at the University of Texas in Austin, the Court would no longer defer to universities’ claims that they were using the proper admissions formulas; it subjected them to stricter tests.
The University of Texas formula did survive those tougher standards in 2016, by a 4-to-3 ruling with only seven Justices taking part. (The three Justices who dissented remain on the Court today: Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas and Samuel A. Alito, Jr.) By the time of the second University of Texas decision, the Harvard and University of North Carolina cases had begun their journeys through the lower federal courts, posing what was set up as the ultimate test.
Those cases arrived before a Court that now has a six-Justice majority of conservatives, with only Breyer and two progressive or liberal colleagues on the bench. That array almost certainly accounts for the Court’s readiness to review whether to allow racial factors to continue any longer in college admissions – and, by implication, in other areas of government policy.
The two cases are different in one key respect: Harvard is a private institution while UNC is run as an agency of the state. The Constitution itself only applies directly to government and its agencies, so they are forbidden to discriminate on the basis of race. The Fourteenth Amendment assures legal equality in state government programs and policies. But Title VI of the Civil Rights Act of 1964 forbids racial discrimination in any educational program that receives federal funds, and the challenge to Harvard is based upon that law.
The Harvard case had reached the Court first, after a federal appeals court upheld its admissions process against a claim that it discriminates against highly qualified Asian-American applicants, instead favoring applicants of color.
The University of North Carolina’s process had been upheld by a federal trial judge in Winston-Salem, and that case was on its way to an appeals court when the challengers asked the Supreme Court to reach out and grant review of that case, too, right away.
The cases were consolidated by the Court, scheduled together for one hour of hearing. Because the Court has now filled its calendar of cases that it plans to decide during the current term, these two will go over to the next term starting on October 3.
It seems likely that the two cases could be heard by the Court quite early in the new term, and that could mean that they would return to public visibility before the national elections next November 8. A final decision would not be expected until sometime in 2023.
Thus, colleges and universities will be able to go through another round of admissions, using racial factors, before these cases are likely to be decided.