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Supreme Court Agrees To Hear Harvard and UNC Affirmative Action Cases

Supreme Court Agrees To Hear Harvard and UNC Affirmative Action Cases

The cases put affirmative action, that is, discrimination in order to achieve racial diversity, squarely on the table for reconsideration.

This is big news. We have covered the case against Harvard alleging discrimination against Asian applicants many times, but have not yet covered a similar case against the University of North Carolina. The cases put affirmative action, that is, discrimination in order to achieve racial diversity, squarely on the table for reconsideration.

The Supreme Court has just accepted both cases for review:



The petitions for writs of certiorari are granted. The cases are consolidated, and a total of one hour is allotted for oral argument.

You can view the SCOTUS case dockets, with all the briefs, here:

Docket for 20-1199
Title: Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College

Docket for 21-707
Title: Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al.

Our prior coverage of the Harvard case:

Here is a summary of the issues in the Harvard case from one of my prior posts:

We covered the appeal decision in detail, noting that there was no real dispute that Harvard discriminated, as the appeals court acknowledged:

A race-conscious admissions program is not narrowly tailored if a university uses it despite workable race-neutral alternatives. See Fisher I, 570 U.S. at 312. The district court found that eliminating race as a factor in admissions, without taking any remedial measures, would reduce African American representation at Harvard from 14% to 6% and Hispanic representation from 14% to 9%. SFFA II, 397 F. Supp. 3d at 178. It found that at least 10% of Harvard’s class would not be admitted if Harvard did not consider race and that race is a determinative tip for approximately 45% of all admitted African American and Hispanic students. Id.

The appeals court found, however, that Havard so far had couched such discrimination in the legally necessary verbiage under existing Supreme Court jurisprudence:

Harvard has identified specific, measurable goals it seeks to achieve by considering race in admissions. These goals are more precise and open to judicial scrutiny than the ones articulated by the University of Texas and approved by the Fisher II majority….

These goals make clear that Harvard’s interest in diversity “is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” but “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Parents Involved, 551 U.S. at 722 (quoting Grutter, 539 U.S. at 324-25). Race is one piece of Harvard’s interest in diversity. It is “considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.’” Id. at 723 (quoting Grutter, 539 U.S. at 330). …

Harvard has sufficiently met the requirements of Fisher I, Fisher II, and earlier cases to show the specific goals it achieves from diversity and that its interest is compelling….

SFFA has just filed a Petition for Writ of Certiorari (pdf.) asking the Supreme Court to take the case, and raising the following Questions for review:


1. Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?

2. Title VI of the Civil Rights Act bans race-based admissions that, if done by a public university, would violate the Equal Protection Clause. Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives?

Here’s is part of the introduction as to why the Supreme Court should hear the case:

But given Harvard’s flagrant violations of Title VI, it fails strict scrutiny even under Grutter. Harvard’s mistreatment of Asian-American applicants is appalling. Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less likable and kind. This is reason enough to grant review. That Harvard engages in racial balancing and ignores race-neutral alternatives also proves that Harvard does not use race as a last resort. All of this makes intervention that much more urgent.

This case is the kind of important individual rights dispute that this Court has not hesitated to hear. Review thus would be warranted if the defendant were any university subject to Title VI. But it isn’t just any university. It’s Harvard. Harvard has been at the center of the controversy over ethnic- and racebased admissions for nearly a century. The Court should grant certiorari.

The Petition ended with this point:

The First Circuit violated this Court’s precedent in several important ways. If its decision stands, then universities can use race even if they impose racial penalties, make backward-looking racial adjustments, ignore critical mass, eschew sunset provisions, and identify no substantial downsides to race-neutral alternatives. The Court’s precedent does not allow this unbridled use of race. If it does, this Court should be the one to say so. And if it does, the precedent is not worth keeping.

Inside Higher Ed points out how thin SCOTUS support was for affirmative action the last time the issue was before the court:

The decision to hear the cases represents a chance for opponents of affirmative action to reverse not only the Harvard and UNC decisions but many others that have upheld the use of affirmative action since the Supreme Court ruled in the Bakke case in 1978. The decision comes at a time when the composition of the Supreme Court differs significantly from the last time it upheld the use of affirmative action in college admissions, in 2016, in a case involving the University of Texas at Austin.

That decision was 4-to-3 because of the death of Justice Antonin Scalia, an opponent of affirmative action, and the recusal of Justice Elena Kagan, who worked on the case as solicitor general before she joined the Supreme Court. The author of the decision, Justice Anthony M. Kennedy, has since retired from the Supreme Court.

The three justices who were in the minority in that case—Chief Justice John Roberts, Justice Samuel Alito Jr. and Justice Clarence Thomas—remain on the court, and they have been joined by three conservative justices.

Recall Chief Justice Robert’s statement that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Liberal Harvard Law Professor thinks it’s a foregone conclusion how the court will rule (i.e. against Affirmative Action).

If SCOTUS strikes down affirmative action, it would lead to a tsunami of litigations challenging racial preferences across academia and corporations, where Ibram Kendi’s maxim justifying racial discrimination is the prevailing ideology:

“The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”


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I can’t wait to hear the left tell Clarence Thomas that the racial gaps are just as big today as they were when AA was instituted and that AA is an absolutely necessary tool to close the the racial gaps.

UnCivilServant | January 24, 2022 at 10:31 am

I forget which justice it was who put it properly – the only way to stop racial discrimination is to stop discriminating based on race.

Stop this garbage.

The libs on the court will vote to continue the illegal and immoral discrimination. The conservatives will vote against. Roberts will try to split the difference, allowing it to continue while still calling it bad.

Harvard etc, will win.

Sandra Day O’Connor was a usually level-headed and pragmatic Justice, but, she made a huge mistake in signing on to the Court’s predictably unworkable and ripe-for-abuse framework in Grutter v. Bollinger, allowing race to allegedly be one of a multitude of factors in law school admissions. It was totally predictable at the time that the Court’s framework was unenforceable and would be exploited by university administrators seeking a work-around to use race as the overarching, primary determinant factor (unspoken, of course) in admissions.

American Human | January 24, 2022 at 11:24 am

If universities would simply not include a checkbox for race on their admissions paperwork, hey presto, problem solved. They could also forgo the Sex checkbox too.

This is the kind of thing that happens when the government gets involved in the details of race.

This type of racial profiling – okay.
That type of racial profiling – not okay.
This other type of racial profiling – okay when we say it is but otherwise not.

    Even without a checkbox for race (or sex), they will identify the race and sex in the interview. Remember, it is in the interviews where the Harvard admissions people down-rated Asian applicants to lower their numbers.

    Universities seem to have concluded that the Supremes are going to rule against racial discrimination. That is why so many have ended any use of exams such as SATs and ACTs. These exams provide the proof that discrimination is taking place. Without exam scores, it’s nearly impossible to prove, since high-school grades are inflated to nearly all A’s for everyone.

So is it completely up to the justices what cases they hear or is there some kind of council or similar body that has input?

off topic, but this is how the invisible hand should respond to the bigotry of these institutions.

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Sent: Monday, January 24, 2022 7:41 AM
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    DSHornet in reply to Andy. | January 25, 2022 at 12:05 pm

    The reply, Hello Andy, contains grammatical errors, mostly associated with the use of commas. So much for a modern education if a high school graduate can catch them. Do you really want to work there?

Overturn Sandra Day O’Connor.

It’s always entertaining to observe while the d/prog twist themselves into knots trying to justify racial discrimination as a remedy to past racial discrimination, implemented on behalf of people for whom there is no evidence of current discrimination. The d/prog will continue to advance an unsupported conclusion; current day racial discrimination is a necessary evil to further their world view.

even humphrey, who had considerable input on the ’64 act and other elements of lbj’s “great society” nonsense, had significant reservations about the scope of it all–he knew that what was really taking place was federal endorsement of reverse discrimination

bad policy then, bad policy now–when you eliminate merit/ability/aptitude as requisites/qualifications, what can you reasonably expect?

Affirmative discrimination not limited to racism. Diversity [dogma] (i.e. color judgment, class-based bigotry) breeds adversity. #HateLovesAbortion

Yes, this is good news. Will Justice Kagan, as the former dean of Harvard Law, have to recuse herself from the case?

    Observer in reply to Guahan. | January 24, 2022 at 3:33 pm

    She didn’t recuse herself from the Obamacare case, even after writing the legal defense of the law as Obama’s Solicitor General.

    So why would she recuse herself now? Legal ethics are for the little people!

An open secret is the fact that universities have been using race and sex as (often the major criteria) for hiring faculty and administrators. I have been on hiring committees where “diversity” was the major factor, as though it wasn’t illegal to hire people based on their race and sex.

Colleges have also been using political views as criteria for hiring. They often require a “diversity statement” that measures how enthusiastic the applicants are for woke politics.

Subotai Bahadur | January 24, 2022 at 3:55 pm

One factor not mentioned here in the commentary is the question of whether The Court or subsidiary courts care at all about what the black letter law is, or what the Constitution says when making rulings. For quite a while it has been apparent that it is political sponsorship that is most on point for these kinds of decisions, and it is a peculiar act of faith for those not in the Legal Priesthood to believe otherwise.

I mean, you might as well believe in honest elections.

Subotai Bahadur

This is a step in the right direction. As to how they will rule is a bit murky ever since we disovered there is a parallel universe. At times I feel as if I’m living in the tv series “Fringe.”

So, how does the court plan to let us down this time?

The Sandra Day O’Connor memorial pro-discrimination ruling was allowed to trump the Constitution. Will that be remedied now, or will the court find a pretext to keep racial discrimination alive for another generation to suffer under?

Everyone talks about systemic racism. Now is their chance to do something about it.

There are three justices on the Supreme Court:

There is one compromised hack on the Supreme Court:

There are two escaped monkeys on the Supreme Court:
-Liarmayor (aka Dodomayor)

This is one Joe Biden on the Supreme Court:

Let the universities put their money where their mouths are …… any student loan default is 50% charged back to the school that was associated with the loan. There would be few schools that could afford to accept unqualified students, regardless of race, and offer “basket weaving” majors for very long. (I have long felt that the decline of trade schools was a societal mistake.)

Why don’t universities like Harvard just go with open enrollment. You sign up, you pay your money (based upon your ability to pay, of course), you take the course, you pass or fail. We certainly have the technology to allow that today. Why not? Because, irony of ironies, a Harvard education is not first and foremost about education, it is first and foremost about PRIVILEGE, and all that goes with it. Membership has it’s privileges.