Very few Supreme Court decisions in American constitutional history can match the dramatic intensity and cultural breadth of its 1954 ruling in Brown v. Board of Education, ending racial segregation in the nation’s public schools.  But, with an anxious nation once again asking itself what it should be doing now about race, the Supreme Court takes a turn in the discussion.  Tomorrow, it will hear two cases that, potentially, might put an end to colleges’ use of race in selecting each year’s freshman class and, along with that, cause a profound shift in the modern civil rights revolution.

The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov  To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt

Background: These two cases are steeped in American history, early and modern.  One involves a university founded in the year the U.S. Constitution was ratified (1789), the University of North Carolina – the nation’s oldest state-run college.  The other involves America’s oldest higher education institution, founded 140 years before the Declaration of Independence (1636), Harvard College, which is privately-run.

Now, they are before the Supreme Court for the latest tests of the nation’s 67-year process of finding remedies for the past history of racial segregation in education.  A critical point was 1955, when the Supreme Court began, one year after Brown v. Board of Education, the often-frustrated commitment to making racial integration an American reality.

The Court first moved to the higher education level in 1978, in Bakke v. University of California Regents – a widely splintered ruling that struck down a racial quota in a state medical school’s admissions policy.   The decision, though, did spell out a formula for judging the use of race in choosing students, and that remains the test, right up to tomorrow’s hearings.

These cases reached the Supreme Court at different times, and raised issues in some ways different.  At first, though, the Court decided to consider them together in a single hearing.  It split them when the new Justice, Ketanji Brown Jackson, joined the Court last summer.

Jackson, a graduate of both Harvard College and its Law School, was a member of the College’s managing Board of Overseers when she was nominated to the Court; that Board’s website no longer lists her as a member.  But after she joined the Court in June, she took herself out of the Harvard case, when the Court on July 22 set the cases for separate hearings.  She will take part in the University of North Carolina case, which comes up first tomorrow, then leave the bench when the Harvard hearing begins.

The constitutionality of the admissions policies at UNC will be judged under the Fourteenth Amendment’s Equal Protection Clause, which applies only to government-run institutions.  Harvard’s admissions approach will be tested under Title VI of the 1964 Civil Rights Act, which bars racial discrimination in any education program – public or private – that receives federal funds, as Harvard does.  The Supreme Court has ruled that Title VI’s equality mandate is interpreted in the same way as the equality clause in the Fourteenth Amendment.

Both cases were taken to the Court by a group that strenuously opposes any use of race in college admissions – Students for Fair Admissions.  In each case, the Court has agreed to rule on that group’s plea to overrule a 2003 decision (Grutter v. Bollinger) that upheld some use of race in admitting students to the University of Michigan Law School.  The Grutter ruling  re-affirmed the constitutional test that the Court had first spelled out in the Bakke case. (By coincidence, the Bakke ruling was influenced by an admissions plan then used by Harvard.)

It was in the Court’s main opinion in the Grutter case that then-Justice Sandra Day O’Connor noted that it had been 25 years since the Bakke decision, and she added: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today….[the] interest in student body diversity.”

Nineteen years later, the issue is raised anew before an almost completely changed Court.  Justice Clarence Thomas is the only member of the Court remaining from the time of the Grutter decision; he dissented then and is a leader of the current Court’s dominant six-Justice, conservative majority.

Although the challengers originally asked the Court to overrule only the Grutter decision, the legal briefs on the other side are treating both cases as if they were also testing the continuing validity of the 1978 Bakke decision itself, and of two different rulings by the Court involving undergraduate admissions at the University of Texas – a decision in 2013 ordering a lower court to look anew at that policy, and one in 2016 upholding the Texas policy.

From the Court that decided the 2016 version of the Texas case, only Justice Sonia Sotomayor remains from that majority, while three dissenters then are still on the Court: Chief Justice John G. Roberts, Jr., Justice Samuel A. Alito, Jr., and Justice Thomas.

For the discussion here, the broad outlines of each institution’s admissions policy will be described first, followed by the facts of the challenge and a summary of the questions before the Court in each case.  The significance of the Court’s review will be analyzed for both cases in the concluding section.

First hearing Monday: Students for Fair Admissions v. University of North Carolina  The case, scheduled for 90 minutes, will begin at 10 a.m.

UNC’s admissions policy: The Chapel Hill, N.C., university places a priority on recruiting a “diverse” student body, finding that diversity has significant educational value.  It seeks to recruit high-achieving students from varying social, economic, geographic and racial backgrounds, and its policy is highly selective, usually admitting 4,200 first-year students from an applicant pool of more than 43,000.

Admissions officers are trained to pursue “a diverse class across multiple dimensions, including but not limited to diversity of experience, ideas, backgrounds, socio-economic status, racial and ethnic backgrounds, and first-generation college status.”  Race and ethnicity are to be considered “as one factor among many based on a holistic review of all circumstances relevant to an individual applicant….There are no quotas, fixed points, or separate admissions processes based on a particular candidate’s race or ethnicity.”

The challengers’ claims:  Students for Fair Admission, a group created in 2014 for the specific purpose of filing lawsuits to challenge college entry policies that take any account of race, sued UNC later that year (on the same day that it sued Harvard College).

The group has made it clear throughout the route of its cases through the courts that its primary aim is to stop any use of race, at any stage of the admissions process, claiming that to be a flat violation of the Fourteenth Amendment’s guarantee of legal equality.  It has a backup argument on the same claim of racial bias, contending that Title VI of the Civil Rights Act does not legalize the use of race.

Beyond those claims, Students for Fair Admissions contends that race is used as a factor in every stage of UNC’s admissions, that it results in preferences limited to blacks and Hispanics while giving no preferences to whites or Asian-Americans, and that UNC has available alternative selection methods that are race-neutral but refuses to use those.

A federal trial judge in Winston-Salem, N.C., turned aside the challenge to any use of race, finding that she was bound by Supreme Court precedents allowing that approach.  In a lengthy opinion, she rejected each of the challengers’ specific points, finding that UNC’s process was a “holistic” one that treated race as only one factor among many – the approach that the Supreme Court allowed in the Grutter decision.

The group persuaded the Supreme Court to allow it to bypass the appeals court level, and to hear its challenge directly, along with the Harvard case.

The questions before the Court: Will the Justices bar the use of race in admitting students to public colleges and universities by overruling prior precedents allowing that approach?  If not, did the University of North Carolina illegally refuse to apply race-neutral alternatives, such as focusing on applicants’ socio-economic status?

Second hearing Monday:  Students for Fair Admissions v. President & Fellows of Harvard College  The hearing, scheduled for 70 minutes, will begin after the North Carolina hearing has ended.  Only eight Justices will be on the bench for this hearing, without Justice Jackson.

Harvard’s admissions policy:  Like the University of North Carolina, Harvard seeks to maintain a “diverse” student body at its Cambridge, Mass., campus.  Its policy aims at recruiting students with “different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities.”  Its process is more complex than UNC’s and, because of that, it appears to provide more opportunities for race to be taken into account.

Harvard’s process begins with recruiting efforts, aimed at its broad diversity goals.  When applications are filed, the process brings in a “first reader” for each applicant, assigning numerical scores for academics, extracurricular experience, athletic achievement, “school support,” personal qualities and, finally, an “overall” score.  An interview follows, either with an alumnus or an admissions officer, who also scores the applicant on the same qualities, excluding school support and athletics.

A regional committee’s evaluation is next, and it makes recommendations to the full admissions committee, which can tentatively admit a student by majority vote.  At that point, some 2,000 applicants have made it to the tentative list.  (For the current academic year, Harvard admitted just over 2,000 from a pool of more than 61,000 applicants.)

As that selection process moves forward, admissions officers are given single-page summaries of the “demographic characteristics” of those selected for admission, compared to the year before.  The categories are geographic region, race, gender, intended concentration of study, and whether the applicant is seeking financial aid.  The purpose, Harvard says, is to avoid dramatic year-to-year drop-offs in categories of the expected admitting class, including race.

Those sheets also allow forecasting of the percentages of those set for admission who will accept the offer, because acceptance rates tend to vary by category.  Those forecasts can then be shaped by awarding of so-called “tips” for an applicant’s unusual accomplishments or personality, ethnic identity, athletic recruits, kinship with alumni (“legacy”), and children of faculty and staff.  “Tips” can be awarded at each stage in the overall process.

The challengers’ claims:  Students for Fair Admissions sued Harvard in federal court in Boston, contending that the policy violates Title VI of the 1964 civil rights law.  Noting that Harvard does include race in the filtering process, the lawsuit argued that the actual goal of the process is “racial balancing,” that race is treated as more than a “plus” factor, and that the College could achieve its diversity goal by race-neutral alternatives. The group also asserted that Harvard intentionally discriminates against Asian-Americans by assigning them lower scores in their personal evaluations.

A federal trial judge ruled for Harvard, finding that it satisfied the strictest legal test for racial classifications – that is, the process was “narrowly tailored” to serve its “compelling interest” in the academic benefits of diversity.  Further, the judge rejected the claim of “racial balancing,” concluding that the process treats each applicant as an individual, does not use any racial quotas, and does not set – in advance — targets to achieve in the characteristics of the admitted class.  The “tips,” the judge found, were not used to manipulate the racial makeup of the admitted group.  And the judge ruled that there was no intentional bias against Asian-Americans.  Race is never used as a negative, the jurist concluded.

Based on much the same reasoning, a federal appeals court upheld the Harvard policy, leading the challengers to appeal to the Supreme Court.

The questions before the Court:  Will the Justices bar the use of race in admitting students to private colleges and universities that receive federal financing, by overruling prior precedents allowing that approach?  May such a private institution reject a race-neutral alternative admissions process unless it proves that the alternative would dramatically impair academic quality or significantly reduce campus diversity?

Significance:  Early in his service as Chief Justice, John Roberts expressed in a very simple way his views on race as a factor in public policymaking.  In a decision in a 2006 voting rights case, he wrote: “It is a sordid business, this divvying us up by race.”  A year later, in a decision dealing with school desegregation, he wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

If there is now a majority on the Supreme Court ready to declare that idea as constitutionally mandated, and that is exactly what the Court is being asked to do in these two cases, that would be almost as important in history as Brown v. Board of Education.

And, if the Court were to go that far, would the result be confined to college admissions policies?  What would happen to civil rights laws, in general – at least when racial factors have been mandated in fashioning remedies for discrimination?  How about redistricting of election boundaries, when that is done to increase the voting power of racial minorities?  How about “public accommodations” laws, on equal access to motels, restaurants and theaters?

Should some of the Court’s conservatives be deterred by such dramatic prospects, might the Court stop short of totally forbidding the use of race in public policymaking, but instead fashion a new, more restrictive test of its legality?  The Court has not tried to do that in any other area of constitutional law, so it is far from clear what such a test would look like.

Aside from the fundamental race question, these cases are also significant because they could draw the Court to make its own re-assessment of the academic doctrine that diversity has educational value.  How could pluralism as a cultural value be taught without including race?  Would “divvying up” society along economic lines be a substitute for race; where along that line would wealth stop and poverty begin?

The two cases also pose a significant test of what is now the dominant theory applied by its conservative majority in interpreting the Constitution: the doctrine of “originalism,” which seeks to discern what those who wrote constitutional clauses meant at the time they wrote them.  Because that approach puts so much stress on history and tradition, it would seem to put the focus on what the authors of the Fourteenth Amendment meant in 1868 and what Congress meant in enacting Title VI in 1964.

New Justice Jackson, in a series of remarks and questions she made during a hearing the Court held on October 4, in another case involving racial issues, she vigorously pressed the point that the authors of the Fourteenth Amendment definitely intended to authorize government benefits explicitly for the freed slaves.  She will be able to make the same point in the UNC case.

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On Tuesday, the Court will hold two hearings on criminal law.  The first case seeks clarification of when convicted individuals can take advantage of a new Supreme Court ruling that made their conduct no longer criminal.  The second involves a death-row inmate seeking to take advantage of a Supreme Court ruling that came after his case had been closed in state courts.