Affirmative Action: What Did We Learn From The Oral Argument And What's Next?

• Published date: 03 November 2022
• Subject Matter: Corporate/Commercial Law, Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Diversity, Equity & Inclusion
• Law Firm: Jenner & Block
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz, Kathryn Wynbrandt and Kevin J. Kennedy

Yesterday, the US Supreme Court heard oral argument in two cases'Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina'concerning the consideration of race in college admissions. Students for Fair Admissions (SFFA), the petitioner in both cases, argued that Harvard College and the University of North Carolina (UNC) engage in racial discrimination against Asian-American applicants. The cases present the Court with the question of whether to overrule Grutter and other precedents permitting the consideration of race in admissions for the purposes of furthering student body diversity. If the Court were to do so, it would represent a sea-change for university admissions policies.

Oral argument'which stretched nearly five hours'indicated a sharply divided Court, but a majority of Justices appeared poised to overrule Grutter and thus prohibit the explicit use of race in college admissions. While some Justices seemed open to the use of race-neutral factors in admissions that might ultimately result in racial diversity, a clear majority expressed their concern that under the current doctrine, the explicit consideration of race in admissions could continue forever. Justices Sotomayor, Kagan, and Jackson emphasized the costs that retreating from the Court's precedents would have'in terms of reduced student-body diversity and the follow-on effects from that decrease in diversity'but those opinions were distinctly in the minority. A decision is expected by the end of June 2023.

The Legal and Factual Backdrop

The Supreme Court will decide the SFFA cases against a backdrop of more than 40 years of precedent 'most notably Bakke, Grutter, and Fisher'permitting the use of race in university admissions within certain limits. ¹

Together, these cases established three key principles that have guided colleges and universities in designing their admissions practices. First, schools may have "a compelling interest in attaining a diverse student body," which permits the consideration of race consistent with the Equal Protection Clause and Title VI. ² Second, schools may permissibly seek to enroll a "critical mass" of underrepresented groups'a concept "defined by reference to the educational benefits that diversity is designed to produce." ³ Although "critical mass" may involve "some attention to numbers," it does not allow a fixed number or percentage that must be attained or cannot be exceeded, nor does it insulate particular individuals from comparison with all other candidates for the available openings at a school or program. ⁴ Third, because race-conscious admissions programs are subject to strict scrutiny, they must be "narrowly tailored to achieve the educational benefits that flow from diversity." ⁵ In practice, "narrow tailoring" has required schools to...