Students for Fair Admissions (SFFA) sued the University of North Carolina (UNC) on November 7, 2014, mounting a challenge to UNC’s use of race-based admissions preferences. The complaint was filed in the United States District Court for the Middle District of North Carolina and assigned to District Judge Loretta C. Biggs, who entered her Trial Findings of Fact and Conclusions of Law on October 18, 2021. She held for UNC, ruling that it had met its burdens under the applicable precedents and, based on her decision to credit the expert testimony offered by UNC, rather than that of the individual engaged by SFFA, concluded that UNC is using race as a simple “plus” factor in a “holistic” admissions process that is “narrowly tailored” to achieve the educational benefits associated with student body diversity.
While in some respects a companion case to SFFA’s cause of action against Harvard College, the UNC case does not simply replicate the Harvard suit. In particular, it does not focus on alleged discrimination against Asian Americans. Rather, it is key respects a traditional assault on the use of any race-based preference, with a concomitant focus on how matters played out for the admission of African Americans at the expense of white applicants. It also replicates SFFA’s core contention, that the precedents supporting the use of race in the admissions process – in particular Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003) – are “grievously wrong” and should be overruled.
There are, however, key similarities. Both sides engaged the services of experts to analyze UNC’s admissions practices and decisions and the record compiled marks a second major advance in both opening up the admissions process to detailed scrutiny and basing a ruling on rigorous data assessment. And, as was true in the Harvard litigation, the holding for UNC reflected in large part Judge Biggs’s decision to credit the work of UNC’s primary expert, Dr. Caroline Hoxby from the University of California, Berkeley, and discount that of the same economist who worked for SFFA in the Harvard case, Dr. Peter Arcidiacono from Duke University.
After numerous delays and extensive discovery, a bench trial was held in November 2020, with Judge Biggs finally entering her holdings and order not quite a year later.
Her Conclusions of Law broke no new ground. Rather, she simply reaffirmed that, as matters currently stand, Supreme Court precedent supports the use of admissions preferences, provided they are “narrowly tailored” and that any feasible race-neutral alternatives have been considered and found wanting. Judge Biggs found persuasive the evidence UNC submitted on the educational benefits of its diversity polities. The Findings of Fact for UNC, in turn, set out the experiences and beliefs of numerous administrators faculty, students, and alumni in an attempt to paint a more robust, albeit still largely experiential and anecdotal body of “evidence.” Unfortunately, most of what is set out in the opinion are simple cites to exhibits and trial testimony, rather than detailed explanations, much less rigorous longitudinal analysis of the specific educational goals and benefits set forth by Justice Sandra Day O’Connor in her opinion for the Court in Grutter v. Bollinger (2003). Moreover, it is difficult to assess those portions of the opinion, as many key portions of the trial transcript remains sealed as of this date.
As we note elsewhere, the district court findings and conclusions in the Harvard litigation were affirmed on appeal by the Court of Appeals for the First Circuit. But, in a move that tracks the manner in which the two University of Michigan cases made their way to the Supreme Court, SFFA very quickly filed a Petition for a Writ of Certiorari Before Judgment with the Court on November 11, 2021. In effect, SFFA is asking the Court to treat the two cases as complimentary, differing only in the fact that one institution, Harvard, is private, while the other, UNC, public, with each embracing policies that violate constitutional and statutory pledges of a national commitment to “racial neutrality.” As such, the argument is that there is little to gain by waiting for the Court of Appeals to rule and every reason to take these matters up in a joint appeal.
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