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SCOTUS Cases Could Determine Future of Affirmative Action

The Supreme Court will hear oral arguments for two cases, one from UNC and the other from Harvard, that could radically change rules around race-conscious admission practices at colleges and universities.

(TNS) — The U.S. Supreme Court on Monday, Oct. 31, will hear oral arguments in two cases that could have significant impacts — and potentially overturn about two decades of precedent — on race-conscious admissions practices at colleges and universities around the country.

UNC-Chapel Hill is at the center of one of those cases, Students for Fair Admissions v. University of North Carolina, defending to the nation’s highest court the university’s use of race as one of dozens of factors considered in its “holistic approach to undergraduate admissions.”

The case will consider whether institutions of higher education can use race in their admissions decisions, and whether UNC’s practices violate the 14th Amendment to the U.S. Constitution, which provides equal protection under the law.

Another case heard on the same day will consider the use of race in admissions processes at Harvard University, and whether that school’s race-conscious admissions violate Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by institutions that receive federal funding.

Both cases are brought by the same plaintiff, Students for Fair Admissions (SFFA), an anti-affirmative action group made up of thousands of rejected applicants, prospective students and parents. The group is led by Edward Blum, a conservative legal activist who previously led a successful effort to dismantle part of the Voting Rights Act of 1965 in Shelby v. Holder, a 2013 Supreme Court case.

SFFA is “urging the Supreme Court to end the use of racial classifications and preferences in admissions at all colleges and universities,” Blum told The News & Observer in an email Tuesday.

The court, which tilts conservative and has shown a willingness to overrule precedent, is expected to hand down opinions next year. Depending on how the court rules, the decisions could significantly alter, or even bring an end to, race-conscious admissions processes, also referred to as affirmative action, in higher education.

Such practices are currently supported and upheld by the court’s precedent in Grutter v. Bollinger, the 2003 case on the University of Michigan Law School that allows what is referred to as “narrowly tailored” uses of race in “highly individualized” admissions decisions “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

In other cases on the issue, the Supreme Court has ruled that schools are not permitted to have racial quotas or assign points for race in their admissions practices. Lower-level federal courts have previously ruled in favor of UNC’s and Harvard’s race-conscious admissions practices, with judges finding them consistent with Supreme Court precedent.

Students from both universities are being represented by the Lawyers’ Committee for Civil Rights Under Law, a nonprofit law group that works to “secure equal justice for all through the rule of law, targeting in particular the inequities confronting African Americans and other racial and ethnic minorities.”

“It’s important that we not allow the clock to be turned back on progress and opportunity,” Lawyers’ Committee President Damon Hewitt said at a virtual press conference Monday. “That is essentially what is at stake in this case.”

How the Cases Got to The Supreme Court

Both upcoming cases stem from lawsuits filed by SFFA against the universities in 2014.

The group alleged in its suit against UNC that the university uses “racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program,” which SFFA cites as a violation of the 14th Amendment’s Equal Protection Clause.

The group argued that UNC’s race-conscious admissions policies use race as a “defining feature” of a student’s application, to the benefit of “underrepresented minority applicants” — or Black and Hispanic students — and to the detriment of “high-achieving” Asian American and white students. SFFA also argued that UNC could use “race-neutral alternatives” to race-conscious admissions, such as socioeconomic status, to achieve the school’s diversity goals.

Blum told The N&O by email that the group plans to make the same arguments at the Supreme Court, including using data and analysis from Peter Arcidiacono, a Duke University economics professor, to show “that race is the predominant factor in UNC’s admissions policies.”

Since the lawsuit was filed, UNC has defended and stood by its admissions policies and practices, including in a trial at the U.S. District Court for the Middle District of North Carolina in 2020.

In that trial, UNC argued that an applicant’s race is important, but not a dominant feature of the application, and the consideration of race is essential to improving diversity on campus, which enhances students’ academic experience.

“We do not use race or ethnicity as a dominant or defining feature,” UNC’s website on the issue reads. “We only consider that information if a student chooses to share. Even then, we consider race or ethnicity flexibly, as one factor among many, in assessing all we know about an applicant.”

The university says its admissions process is “holistic” and uses “dozens” of factors to evaluate a student for admission, including “academic performance, class rank, essays, experiences and potential to contribute to the educational environment.”

In October 2021, Judge Loretta Biggs ruled in favor of UNC, calling the university’s practices “constitutionally permissible” based on precedent in the Grutter case and subsequent rulings that upheld that case.

Biggs also said the university had considered race-neutral strategies, including using new recruiting strategies, offering more financial aid and admitting more transfer students, and that there was “no non-racial approach that would promote such benefits about as well as its race-conscious approach.”

At the time of Biggs’ ruling, SFFA vowed to appeal the decision to the 4th Circuit Court of Appeals, then the Supreme Court. Less than a month later, the group petitioned the Supreme Court to consider both the UNC case and the group’s case against Harvard, bypassing the appeals court in the UNC case.

The Supreme Court granted SFFA’s petition in January, confirming that the cases would be heard before the nation’s highest court.

“That’s not unheard of, but it is quite unusual for the U.S. Supreme Court to swoop down and scoop up this case and consolidate it [with Harvard],” Hewitt with the Lawyers’ Committee told reporters Monday.

In the months leading up to Monday’s oral arguments, several individuals and groups have filed briefs in support of both groups. UNC is supported by military leaders, major businesses and current and former government leaders, including North Carolina Gov. Roy Cooper and some of his predecessors.

Originally set to have consolidated oral arguments, the UNC and Harvard cases will now be heard separately — a “not unexpected” move made in July that allows Associate Justice Ketanji Brown Jackson, who previously served on the Harvard Board of Overseers, to hear and weigh in on the UNC case while recusing herself from the Harvard case. The court will issue a separate ruling in each case.

The court docket now shows that 90 minutes will be allotted Monday for arguments in the UNC case, while the Harvard case will be allotted 70 minutes.

Possible Outcomes for the Case

“There’s different pathways that the court can take here. The court could hold that, and we would want the court to hold that, you know, both of the plans of Harvard and UNC satisfy strict scrutiny and are consistent with the Constitution,” David Hinojosa, the Lawyers’ Committee attorney who will argue the UNC case to the court, said at a press conference Monday.

“Many people think that that’s not going to happen, given this court, but we believe that the Constitution, the history, the law and the facts are on our side, and that they’ll have to reinvent the law and the facts and the history if they want to overrule the precedent.”

Ted Shaw, a professor at the UNC School of Law who specializes in civil rights and affirmative action, among other topics, previously taught at the University of Michigan Law School. He played a key role in reviewing that school’s admissions policies, which were upheld in the Grutter case.

In an interview with The N&O Wednesday, Shaw compared the upcoming cases and the possible outcomes to the court’s decision this summer to overturn Roe v. Wade, and said “the stakes are huge” for the future of race-conscious admissions.

With a 6-3 conservative majority on the court, Shaw said, it is likely and expected for the court “to do something” on the issue in their ruling, rather than letting the precedent in the Grutter case stand.

“And I think the most hopeful people hope that they will not kill it outright,” he said.

Shaw said the “fear” among affirmative action advocates that Grutter, and thus the constitutionality of race-conscious admissions, will be overturned “is not unfounded.”

Even if the court does not overturn the entirety of Grutter, Shaw said, “they could take a more incremental approach” to dismantling parts of that precedent. That might look like the court upholding the current rationale for race-conscious admissions — that it helps create a diverse student body — but further narrowing how universities can actually use race in their decisions, Shaw said.

“The court certainly has done that in other contexts before,” Shaw said. “They could leave the rationale in Grutter, the diversity rationale, standing or intact, but they could tighten the screws in ways that make it much more difficult to use diversity interests as a reality.”

If the court overturns precedent, Shaw said, the effects of the decision will be felt most by students at colleges and universities around the country.

“These institutions will go on. They’ll survive,” he said. “The question is how diverse they will be.”

©2022 McClatchy Washington Bureau. Distributed by Tribune Content Agency, LLC.
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