U.S. Supreme Court to Hear Two Higher Education Affirmative Action Cases

by Joseph Miller III and Hayley Loufek

In January 2022, the United States Supreme Court decided to hear two cases challenging the use of affirmative action policies in university undergraduate admissions. The cases were brought by the same plaintiff: Students for Fair Admissions, Inc. (“SFFA”). SFFA is a 501(c)(3) nonprofit with over 22,000 members, some of whom are applicants who applied and were denied admission to Harvard and the University of North Carolina. SFFA is seeking in SFFA v. President & Fellows of Harvard College (hereinafter, “Harvard”) and SFFA v. University of North Carolina (“UNC”) for the Court to overturn its 2003 decision in Grutter v. Bollinger and 2016 decision in Fisher v. University of Texas, which held that universities can consider race as a factor for admission with certain caveats. The Court’s decision to hear these cases suggests that it may be willing to reconsider whether race-conscious admissions policies are constitutional.

In Grutter and Fisher, the Court decided that, in the context of higher education, race-conscious admissions policies should undergo a form of judicial review known as “strict scrutiny.” This requires the policy to further a compelling government interest and be narrowly tailored to achieve that interest. The Court found that student body diversity is a compelling interest that justifies the consideration of race in admissions, which satisfied the first prong of strict scrutiny.

However, to be narrowly tailored, the admissions policy cannot seek to reach a racial quota or establish racial balancing by specific numbers. It is also impermissible for higher education institutions to consider race in a “mechanical” way; race can be used as a “plus” factor in making a student more admissible, but it cannot boost their applications by a predetermined amount. Otherwise, race becomes the deciding factor in their admission, which is prohibited.

The Court’s recent decision to hear Harvard and UNC may signal that a change is coming to this framework.

In Harvard, SFFA alleged that Harvard’s race-conscious admissions process discriminated against Asian American applicants in favor of white applicants. Harvard uses a list of “tip” factors that can be considered at multiple stages throughout the admissions process which might tip an applicant toward admission to Harvard. Race is considered in these tip factors, as is athletic ability, legacy status, capacity for leadership, and several other factors. The district court reviewed Harvard’s multi-step, holistic admissions process, as well as whether race-neutral alternatives might allow Harvard to achieve its diversity goals. It also examined statistical and non-statistical studies examining whether Asian-American students are disadvantaged by Harvard’s admission process. It determined that Harvard did not engage in racial balancing, did not use race as a mechanical tipping factor, had no workable race-neutral alternatives, and did not intentionally discriminate against Asian Americans. The appellate court agreed, but that ruling is subject to modification by the Supreme Court.

In UNC, SFFA similarly alleged that UNC’s admission policy discriminated against some of its members based on their race, color, or ethnicity. Specifically, SFFA claimed that UNC’s policy does not consider race as merely a “plus” factor—instead, it uses racial preferences when race-neutral alternatives are available. Students apply to UNC via the Common Application, which includes optional fields for an applicant to give information about their race and ethnicity. Students also have the option to include additional information with their application beyond what UNC requires. But if a student self-discloses their race or ethnicity, application readers are trained to consider race or ethnicity as one factor of many during a holistic review of the applicant.

The district court decided that there were triable issues of fact that a jury should hear for each count in SFFA’s complaint, such that neither party was entitled to judgement as a matter of law. The case was appealed to the Supreme Court so that it could answer the legal questions of (1) whether the Court should overrule Grutter and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would degrade academic quality or the educational benefits of student body diversity.

The Supreme Court will likely hear arguments for these cases in its next term, which begins in October 2022. A decision is expected in spring or summer of 2023.