The Supreme Court is set to hear two cases on Monday challenging race-based admissions policies at Harvard University, the nation's oldest private college, and the University of North Carolina, the nation's oldest public university.
The plaintiff in both cases, Students for Fair Admissions, is asking the Supreme Court to overturn its prior precedent (Grutter v. Bollinger) that allows the narrow use of race in college admissions decisions.
Cases like these aren’t anything new to the Supreme Court. In 2003 and 2016 cases, the high court previously upheld that race and ethnicity can be considered in the college admissions process at the University of Michigan Law School and at the University of Texas.
But the makeup of the Supreme Court changed significantly during the Donald Trump presidency. The court now has a six-to-three conservative majority, which could potentially reverse 40 years of precedent of race conscious admissions processes for colleges and universities.
Poll numbers show that majorities of basically every identifiable group (Republicans, Democrats, Blacks, Whites, Hispanics and Asian Americans) don’t agree with using racial preferences in college admissions, Jess Bravin, Supreme Court reporter at The Wall Street Journal said in an interview with the Yahoo News podcast, “Skullduggery.” “If you can overrule Roe v. Wade and move on, this is relatively small potatoes to [the Supreme Court],” Bravin said. “I think [with] this case [it] is a lot easier to envision them overruling the precedents than [it was with] Roe.”
Although the decision on the case is expected sometime before next summer, educational institutions are readying for their admissions process to change.
In an effort to better understand the cases surrounding affirmative action in the college admissions process, Yahoo News also spoke with Vern Granger, director of admissions at the University of Connecticut, and Derek Black, professor of law at the University of South Carolina, about how each case is different and what the implications are for the potential outcomes.
Read the discussions below. (Some responses have been edited for length and clarity.)
Why are there two different cases before the Supreme Court?
Derek Black: There is potentially an important difference between the North Carolina case and the Harvard case. Because Harvard is a private institution, it is not subject to the United States Constitution. [The plaintiffs] are suing Harvard for violation of Title VI of the Civil Rights Act of 1964. Title VI applies to all recipients of federal funds. So that means that whatever the court decides in regard to that case applies to private and public institutions — basically anyone receiving federal funds. So one is the private side, which is a Title VI claim. The other is the 14th Amendment claim [in the University of North Carolina case].
The legal argument in both is: Diversity shouldn't be a compelling interest, therefore it can’t survive scrutiny under Title VI or the 14th Amendment. But those are two separate laws.
Title VI is one law, and it really goes to what Congress’s intent was in 1964: What does the statute itself mean or not mean? And then the 14th Amendment says, “No state shall deny any person equal protection of the law.” They’re two different laws with two different legislative histories. So that theoretically could lead to different results, although the court has tended over the last 20 years to treat them as coextensive. So even though they were passed in radically different periods of time, it has basically applied the same rules to both.
How will the makeup of the 2022-23 Supreme Court affect these case decisions?
Black: The composition has changed quite a bit since the last time the Supreme Court took up these issues: Fisher v. Texas [in 2016], and Justice Kennedy was still on the court. In two cases he voted to uphold diversity, and Justice Ruth Bader Ginsburg was still on the court then. So both of those yes votes for diversity are gone, and both of them have been replaced with more conservative members of the court.
In the Harvard case, you potentially lost a third of the vote. Justice Breyer retired and was replaced by Justice Jackson, who, based upon past writings, could be sympathetic to a diversity hearing, but because she serves on the [board of overseers] at Harvard, she recused herself from the Harvard case.
So there's only eight justices hearing the Harvard case and two of the previous yes votes are gone. Three, if you consider there’s only eight people. So there's a pretty narrow path to victory in the Harvard case, but [Justice Jackson] is hearing the North Carolina case. So even though she’s not on the Harvard case, they can’t render cases that are constitutionally inconsistent with one another.
How will colleges and universities prepare for either outcome from the Supreme Court cases?
Vern Granger: We have to prepare ourselves for potential outcomes. One of those outcomes is going to impact how race is considered in our evaluation process. And there could be some changes with regards to that. But no matter what the decision is, I think two things are going to be constant. One of those is that you're going to continue to follow the law. So whatever the law comes out of the court cases as an institution, as a profession, it's going to be important that we continue to follow that. But also what is going to continue to take place — and we will amplify — is our commitment to diversity and how it is critical to the learning environment of the students at the university, and how we are going to continue to support that in all different forms. But it could impact how we are able to review and select applications.
And we’re having conversations internally about what those potential implications could have in our review process. We are preparing for all the potential outcomes, but we’re not by any means making any changes to our current processes and our outreach efforts until the results of the case.
If the Supreme Court overturns its precedent for affirmative action in higher education, will it have any impact on programs beyond race and ethnicity?
Granger: It is hard to say what impact these [cases] will have on programs beyond race and ethnicity. I think we’re having conversations [around] the federally funded programs like Trio or Gear Up: Will the decisions have an impact on them? There’s a lot of unknowns with this, but it is prudent for all universities to begin having these conversations about what are the ramifications based on certain decisions that may come from the Supreme Court.
The thing we’ve been doing at UConn, and what I’m hearing a lot of other NACAC [National Association for College Admission Counseling] member institutions have been doing, is documenting and reviewing all of our race-neutral outreach strategies that we have in place.
I think that is important that we should be doing regardless of what happens with the court and their decision.