Affirmative Action Up For Judgment? US Supreme Court Grants Cases Seeking To Prohibit Consideration Of Race In College Admissions

• Published date: 26 January 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Education, Trials & Appeals & Compensation
• Law Firm: Jenner & Block
• Author: Matthew S. Hellman, Ishan K. Bhabha, Lauren J. Hartz and Julia Kim Hirata

Introduction

Yesterday, the Supreme Court agreed to hear a pair of cases asking the Court to overrule its precedents governing the consideration of race in college admissions. One case concerns admissions at Harvard College, and the other concerns admissions at the University of North Carolina. In both cases, the petitioner, Students for Fair Admissions (SFFA), alleged that the university engaged in racial discrimination against Asian-American applicants. And in each case, the lower courts rejected those claims after a full trial. SFFA petitioned for certiorari and asked the Court to reconsider and overrule its key precedent, Grutter v. Bollinger, 539 U.S. 306 (2003), which permits universities to consider race as one factor among many in a holistic admissions evaluation. The grant suggests that the Court is willing to reconsider its precedents in this area, and it may result in additional limitations or an outright prohibition on the consideration of race in college admissions. The cases will likely be argued in the fall, and a decision is expected by the end of June 2023.

Background

The Supreme Court's grant of certiorari marks the latest development in a seven-year dispute between SFFA and Harvard College. In 2014, the non-profit group filed a lawsuit in federal court, alleging that Harvard's policies violate Title VI by intentionally discriminating against Asian Americans through its use of race as a factor in admissions.¹ In ruling for Harvard on all counts, a federal district court determined that Harvard's admissions policy was consistent with Supreme Court precedent and advanced the college's fundamental interest in diversity. Specifically, the court held that "[t]he evidence at trial was clear that a heterogeneous student body promotes a more robust academic environment with a greater depth and breadth of learning, encourages learning outside the classroom, and creates a richer sense of community."² On appeal, the First Circuit affirmed the district court's ruling.³

In 2014, SFFA also filed a lawsuit against the University of North Carolina at Chapel Hill, similarly alleging that the use of race in its admission policy violated the Equal Protection Clause and Title VI. On October 18, 2021, a federal district court determined that UNC met its burden of demonstrating that "its undergraduate admissions program withstands strict scrutiny and is therefore constitutionally permissible."⁴ SFFA filed an appeal in November 2021, which is currently pending...