Supreme Court Agrees To Hear Harvard and UNC Affirmative Action Cases

Supreme Court Agrees To Hear Harvard and UNC Affirmative Action Cases

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:

CERTIORARI GRANTED

20-1199 ) STUDENTS FOR FAIR ADMISSIONS V. PRESIDENT AND FELLOWS OF HARVARD)
21-707 ) STUDENTS FOR FAIR ADMISSIONS V. UNIVERSITY OF NC, ET AL.

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:

• Complaint Says Harvard Discriminates Against Asian-Americans (2015)
• New Harvard President Rejects Claims of Discrimination Against Asian-Americans (2018)
• Federal Judge Sides With Harvard in Discrimination Case Brought by Asian Applicants (2019)
• Trump administration sides with Asian American students in discrimination suit against Harvard (2020)
• Appeals Court upholds Harvard’s discrimination against Asian-Americans (2020)
• Supreme Court Asked To Hear Harvard Anti-Asian Discrimination Case (2021)
• Supreme Court Delays Whether To Review Harvard Anti-Asian Discrimination Case, Seeks Biden Admin Position (2021)
• Harvard Dropping SAT Requirement for Several More Years Enables More Anti-Asian Discrimination (2021)

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:

QUESTIONS PRESENTED

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).

The feeling you get when you know exactly what each of the nine justices will do but have to pretend you’re uncertain while the justices go through the motions of deep thought for a year and a half . . . https://t.co/cAnQC8icEV

— Laurence Tribe (@tribelaw) January 24, 2022

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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