Supreme Court to Hear Harvard and UNC Affirmative Action Cases

The Supreme Court today agreed to hear an appeal of a decision that Harvard University’s use of affirmative action in college admissions is legal. The court will also hear an appeal of a ruling that the University of North Carolina at Chapel Hill’s use of affirmative action was legal. The court said it was consolidating the cases and would hear them in a total of one hour.

The decision to hear the cases represents a chance for opponents of affirmative action to reverse not only the Harvard and UNC decisions but many others that have upheld the use of affirmative action since the Supreme Court’s first foray into the issue in the Regents of the University of California v. Bakke case in 1978. Significantly, the decision comes at a time when the composition of the Supreme Court differs significantly from the last time it upheld the use of affirmative action in college admissions, in 2016, in a case involving the University of Texas at Austin.

That decision was 4-to-3 (because of the death of Justice Antonin Scalia, an opponent of affirmative action, and the recusal of Justice Elena Kagan, who worked on the case as solicitor general before she joined the Supreme Court). The author of the decision, Justice Anthony M. Kennedy, has since retired from the Supreme Court. The three justices who were in the minority in that case—Chief Justice John Roberts, Justice Samuel Alito Jr. and Justice Clarence Thomas—remain on the court, and they have been joined by three conservative justices.

The Harvard case decisions—in 2019 by the United States District Court for the District of Massachusetts and in 2020 by the U.S. Court of Appeals for the First Circuit— came in a case brought by a long-standing critic of affirmative action on behalf of a group of Asian American plaintiffs. Students for Fair Admissions, the group that sued Harvard, in February asked the Supreme Court to hear the case. The brief asked the Supreme Court to repeal its 2003 decision in Grutter v. Bollinger, which upheld the use of affirmative action in admissions by the law school at the University of Michigan. “Although Grutter praised the ‘educational benefits’ of student body diversity writ large, its assumption that a university can predict, based solely on race, an applicant’s ‘views’ or ‘experience[s]’ is little more than racial stereotyping. As to the Harvard case, the Students for Fair Admissions brief said, “At Harvard, race is not a ‘plus’ that is always ‘beneficial’; it’s a minus for Asian Americans. At Harvard, race is not a ‘factor of a factor of a factor’; it is an anvil on the scale that dominates the entire process. At Harvard, race is not a ‘temporary’ evil to be repealed as soon as possible; it is a key aspect of identity that Harvard will use until a court makes it stop.”

Harvard filed a brief with the Supreme Court in May, urging it not to take the case. “Students for Fair Admissions’ petition recycles allegations both courts rejected and offers a thoroughly distorted presentation of the record,” the brief says. “SFFA tries to sidestep the lower courts’ findings by proffering its own version of the record and urging this court to conclude for itself that Harvard pays excessive attention to race and intentionally disadvantages Asian American applicants. But SFFA’s unreliable portrayal of the facts fatally undermines its case for review,” says the Harvard brief.

The Supreme Court was originally expected to decide whether to take the case in June, but the court asked the U.S. solicitor general to weigh in. She did so last week, backing Harvard and discouraging the Supreme Court from taking the case.

The UNC case is a late addition.

The University of North Carolina at Chapel Hill has asked Supreme Court not to consider an appeal of a lower court’s ruling that UNC’s affirmative action program is legal.

UNC won the case when a federal judge in North Carolina determined that “at trial, UNC defendants produced substantial, credible, and largely uncontested evidence that it has made the deliberate decision to pursue the educational benefits that flow from student body diversity; has offered a principled, reasoned explanation for this decision; and that the benefits the university seeks to achieve are sufficiently measurable to permit judicial scrutiny.”