The Supreme Court has approved the briefing schedule in the consolidated affirmative action cases involving Harvard College and the University of North Carolina. As previously noted, there are two cases before the Court: Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College, No. 20-1199, and SFFA v. The University of North Carolina, No. 21-707. The two have been consolidated and will be argued together in the Court’s October, 2022 Term. Given the briefing schedule, that will likely be in either of the two-week sittings scheduled to commence on either Monday, October 3, 2022 or Monday, October 31, 2022.
The Court approved a series of orders at the request of both SFFA and the two institutions. It indicated that all documents should be filed in its electronic system with the docket number assigned to the Harvard case, No. 20-11199. Individuals wishing to find and read the documents should, accordingly, go to the Court’s website, and look for the Docket Search page, entering 20-1199 in the Search box. You can then scroll down the list generated and find pdf files for each of the documents that have been submitted.
The Court granted the request to extend the time required for filing briefs on the merits. The opening brief by SFFA is now due by May 2, 2022. The responses by Harvard and North Carolina are to be filed by July 25, 2022, with SFFA’s final Reply on the merits to be submitted by August 24, 2022. The Court is also allowing SFFA to file both a brief and reply on the merits in excess of the normal word limits, not to exceed 20,000 words and 9,000 words respectively as opposed to the normal limits of 13,000 and 6,000 words (albeit, as SFFA stressed, the new limits are less than what the total would have been if separate briefs were filed).
Both sides will undoubtedly have the support of a large number of Amicus Curiae (Friend of the Court) filings, possibly, given the attention the cases have already garnered, in record numbers. There were, for example, nineteen such briefs filed on behalf of SFFA at the Petition stage in the Harvard case, eleven in North Carolina (curiously, none were filed in support of either of the institutions at that stage). But that will undoubtedly change now that the cases are slated to be argued and decided by the Court given the stakes: a ruling that could potentially hold that the use of race-based preferences violate, respectively, the Equal Protection Clause of the Fourteenth Amendment when used by public colleges and universities and a similar ban in Title VI of the Civil Rights Act, which applies to private institutions.