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The Legal Intelligencer: "US Supreme Court Considers Diversity Admissions in Next Term
By Sydney Smith Forquer and Ashling A. Ehrhardt - On Oct. 31, the court will hear two cases challenging affirmative action in university admissions: Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina, notably brought by the same anti-affirmative action group, Students for Fair Admissions (SFFA).
Long before Grutter, the court had already determined that strict racial quotas could not be used in admissions but allowed the use of race as a consideration generally. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978). a medical student was rejected twice by a school that reserved a specific number of class places for minority students. The student was able to show that his GPA and test scores exceeded those of each candidate admitted within the minority quota for both years and argued that but for his race, he would have been admitted. The court found that the quota system was unconstitutional but held that the use of race was permissible as an admissions criterion when considered with other variables.
Many universities have submitted amicus curiae briefs in both SFFA cases hoping to sway the justices who may consider a deviation from stare decisis. Notably, Georgetown University and 45 other Catholic colleges filed a brief on Aug. 1 arguing that “racial diversity in student admissions improves educational outcomes and fosters the spiritual development of amici’s students consistent with their Catholic values.” The schools argue that the use of race in admissions serves their religious mission as it creates a “dynamic learning environment,” “increases tolerance,” “ensures that talented members of underrepresented minority groups have access to the educational opportunities that will enable them to advance and contribute to the common good,” and “develops thoughtful, creative and diverse leaders who will be equipped to contribute to the Catholic goal of service to others after graduation.” The argument that racial considerations in admissions result in outcomes supporting religious values may appeal to the more conservative justices, and adds an additional dynamic to the constitutional considerations.
Perhaps the most impactful U.S. Supreme Court cases this year in the education law sector will be the first two scheduled during the court’s November sitting. On Oct. 31, the court will hear two cases challenging affirmative action in university admissions: Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina, notably brought by the same anti-affirmative action group, Students for Fair Admissions (SFFA).
Though the cases will be argued on the same day, they are not consolidated so Justice Ketanji Brown Jackson can participate in the UNC case. Jackson previously sat on the Harvard Board of Overseers and has therefore recused herself from that case.
The cases present slightly different questions of law. Though both cases ask whether institutions of higher education can use race as a factor in admissions the Harvard case additionally examines whether the school violates Title VI of the Civil Rights Act when considering race in its admissions, especially for Asian-American applicants. The UNC case does not invoke Title VI, but instead examines the choice to reject race-neutral alternatives without evidence that such alternatives would erase the academic quality or educational benefits seen as a result of a diverse student body.
If the court rules in favor of SFFA in either of these cases, it would likely override the 20-year precedent of Grutter v. Bollinger, 539 U.S. 306 (2003). Grutter questioned whether the University of Michigan’s consideration of race in law school admissions violated Title VI or the Equal Protection Clause. The court held that the Equal Protection Clause does not prohibit the narrow use of race in university admissions and noted that universities have an interest in the educational benefits resulting from a diverse student body. More specifically, Justice Sandra Day O’Connor stated that the individualized review of applicants means that no student is rejected automatically based on race alone. If the court were to determine in either SFFA case that universities cannot use race as a factor in higher education admissions, Grutter would cease to be law.
Secular universities also wrote supporting Harvard and UNC. A brief filed by Stanford and MIT, in partnership with IBM and Aeris, notes that STEM fields have historically faced greater barriers for diverse students and that a consideration of race amongst other factors “may sometimes shed light on the critical questions of a candidate’s ability to deal with adversity.”
Well-known corporations from across the country, including Apple, Dell, General Motors, Google and Hershey, submitted a brief arguing that diversity in college admissions, and thus in workforces, improves business performance, which “strengthens the American and global economies.”
Perhaps the most telling brief comes from the Asian American Legal Defense and Education Fund, which states that SFFA’s claims that race-conscious admissions discriminate against Asian Americans “perpetuates harmful stereotypes against Asian Americans” and “reduces the Asian American community to a single, gross caricature that serves SFFA’s true goal of increasing white enrollment.”
Fewer briefs have been filed in support of SFFA, but those that exist, coming from organizations including the Foundation Against Intolerance and Racism and the Thomas More Society, note that they support diversity in higher education but view the removal of race from admissions to be consistent with equality.
For evidence of what could occur if racial and ethnic considerations are outlawed in university admissions, the justices may look to the brief filed by the University of Michigan. When Michigan voters rejected race-conscious admissions in state universities in 2006, the university has adopted race-neutral alternatives supported by the SFFA. Since then, the University of Michigan has noted that “Black and Native American students … enrollment has fallen by 44% and 90%, respectively” and when surveyed, “one quarter of underrepresented minority students…indicated they felt they did not belong, … a 66% increase over the last decade.”
The court’s decision will not come until 2023, but the arguments next month may shed some light on the leanings of the newer justices on these issues. It is also likely that any comments made will appear in other active SFFA cases, such as S_tudents for Fair Admissions v. University of Texas at Austin_, which was revived by the U.S. Court of Appeals for the Fifth Circuit in June 2022, and may see filings made in the U.S. District Court for the Western District of Texas before the Supreme Court releases its decision.
While the future decisions of the justices remain foggy, what is clear is the national interest in these cases as the court considers policies that affect a large portion of Americans, as over 60% of U.S. high school graduates enroll in post-secondary education. Additionally evident is that a decision for SFFA could have major ramifications for diversity in education for years to come.