The Supreme Court announced on Monday, January 24, 2022 that it would hear the cases challenging the use of admissions preferences by Harvard College and the University of North Carolina (UNC) (respectively, Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-799). In a brief order, the Court stated that it was granting the request for a writ of certiorari, consolidating the two cases and setting them for one hour of argument.
The Court did not formally announce when that would take place. Its Public Information Office did, however, issue an “informal guidance” to the Supreme Court press corps indicating the argument would be scheduled for this fall, during the Court’s October 2022 Term, which will begin on Monday, October 3, 2022. Those advisories have been invariably accurate. Moreover, given the timing of the decision to accept the cases for review, it is virtually impossible for the parties to timely submit their written briefs to permit oral argument during the spring, and the Court did not, as it did in a case accepted for review on Friday, January 21st, announce an expedited briefing schedule that would allow it to be argued and decided before the current Term ends late June.
From a “big picture” perspective, the cases can be viewed as raising two different types of issue for the Court’s review…
The first is whether it should overrule its prior decisions allowing institutions of higher education to consider race as one factor in their admissions decisions. The formal question presented framed by SFFA focused on Grutter v. Bollinger, 539 U.S. 306 (2003), in which the Court reaffirmed an initial holding to that effect in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Review would also include a subsequent reaffirmation in Fisher v. the University of Texas at Austin, 136 S. Ct. 2198 (2016) (Fisher II). The Court was closely divided in each of these decisions, with preferences deemed constitutional by a single vote of those Justices participating (Fisher II was decided by a 4-3 vote, reflecting the fact that Justice Antonin Scalia had died and his replacement not yet confirmed, with Justice Elena Kagan in turn recusing herself given her prior work on that case while serving as Solicitor General) (each of these decisions is discussed individually on the website under “Affirmative Action Cases”).
The second question is whether the particular systems used by Harvard and UNC meet the rigorous standard set out in the precedents, which require that the policies be “narrowly tailored.” That rubric imposes stringent limitations on how they operate, mandating individual, holistic assessment of each applicant, within which race is simply one consideration, not the dominant one. So, for example, SFFA argues the Harvard penalizes Asian American applicants and is an exercise in “racial balancing.” The North Carolina complaint, in turn takes a more “traditional” approach, alleging that UNC discriminates in favor of African American, Hispanic, and Native Americans to the detriment of white applicants. Both cases are different from early affirmative action cases because of the wealth of admissions data obtained by the plaintiffs, and a “battle of experts” over what the data meant.
As we noted in our prior coverage of the cases, the lower court decisions in Harvard and UNC held that preferences on the basis of race are constitutional as a general matter. They also concluded that each policy was narrowly tailored, and each decision favored the expert analyses proffered by the university defendants.
The parties (and probably a substantial number of “friends of the Court” in their briefs) will undoubtedly devote much effort to debate about the empirical issues. It is, however, highly unlikely that the Court will devote much attention to those matters during a one hour argument. The fact that it imposed that limit is telling. In many highly important and sharply contest cases in the past the Court has allocated both more time and, in one notable instance (the Affordable Care decisions) multiple days. One hour for two cases and three primary parties is not much time, especially if the Court grants divided argument and allows the Solicitor General to appear on behalf of the Biden Administration. It is accordingly reasonable to infer that the Court will focus on the broader issue: are preferences constitutional – rather than the details of narrow tailoring.
Finally, it is worth noting that the Court has replicated what it did almost nineteen years ago, when it took up what would become Gratz v. Bollinger, 539 U.S. 244 (2003) before the Court of Appeals for the Sixth Circuit completed its examination of and ruled on the District Court opinion in that case. SFFA took the permitted but rare step of asking the Court to take up the UNC matter in advance of a decision by the Fourth Circuit, pursuant to the notice of appeal it filed on November 11, 2021. As most commentators have noted, that will allow the Court to account for the fact that UNC is a public institution subject to the strictures of the Equal Protection Clause of the Fourteenth Amendment, while Harvard is a private entity, bound by Title VI of the Civil Rights Act. But that is arguably a distinction without a difference, since the Court has long held (indeed, stressed in Bakke) that the operative rules are the same for each. Rather, the better view is that UNC, as a public institution arguably primarily devoted to the education of the residents of that state, has a different range of options available to it for the purpose of meeting a key aspect of the narrow tailoring mandate: the need to consider and reject “race-neutral alternatives,” such as the percentage admissions systems used (largely very successfully) by public undergraduate institutions in states like California and Michigan, each of which has elite, “flagship” universities on a par with (they would argue, superior to) UNC. And that is a matter of considerable importance, given that in each case a key factor in the results below was an assessment that Harvard and UNC may use preferences as a means to achieve diversity but, as implemented, in ways that would not force them to sacrifice either their reputation for or the reality of exclusivity and academic excellence.
Affirmative Action Debate 