Following eight years of litigation, the Supreme Court will hear on Monday a pair of lawsuits brought against Harvard and the University of North Carolina by anti-affirmative action group Students for Fair Admissions.
The group, led by activist Edward J. Blum, has long held that Harvard discriminates against Asian American applicants and that its admissions program is unconstitutional because it considers race as a factor in admissions.
The Court’s ruling on the two cases may decide the future of affirmative action in higher education. Here’s what you need to know ahead of Monday’s oral arguments.
How did we get here?
SFFA first sued Harvard in 2014. The group alleged that the University’s admissions practices are “racially and ethnically discriminatory” and argued that Harvard was engaging in “racial balancing” by considering race in admissions. SFFA claimed Harvard’s admissions policies violate Title VI of the Civil Rights Act of 1964, which prohibits institutions that receive federal funds from discriminating “on the grounds of race, color, or national origin.”
Following a high profile district court ruling in favor of Harvard in 2019, SFFA appealed to the First Circuit Court. In 2020, the circuit court ruled 2-0 in favor of the University, affirming SFFA’s legal standing to sue but ruling that Harvard did not violate civil rights law.
Three months later, in February 2021, SFFA appealed to the Supreme Court.
The Supreme Court agreed in January 2022 to hear the SFFA case. Over the summer, 81 Republican lawmakers, 20 states, and a former Attorney General submitted briefs in support of SFFA, while hundreds of corporations and universities, including Apple and Google, submitted filings in support of affirmative action.
What are the parties arguing?
According to its opening brief filed with the Supreme Court in May, SFFA wants the Court to entirely eliminate affirmative action in higher education admissions by overturning its decision in the 2003 case Grutter v. Bollinger.
The Grutter case ruled that an admission program that considers race as one of many factors in order to ensure a diverse student body does not violate the U.S. Constitution’s guarantee of equal protection under the law.
“Grutter should be overruled,” SFFA’s opening brief reads, adding that the case “satisfies every factor that this Court considers when deciding to overrule precedent.”
“It was wrong the day it was decided, has spawned significant negative consequences, and has generated no legitimate reliance interests,” it adds.
Harvard has long argued the legality of its admissions process and the value of diversity in its student body.
The lower courts’ previous rulings in Harvard’s favor “were correct then and remain correct today,” the University argued in its response brief filed with the Supreme Court in July.
“Our Constitution promises ‘equal protection of the laws,’” the brief states. “It does not require us to disregard the commonsense reality that race is one among many things that shape life experiences in meaningful ways.”
In a statement released with the Harvard’s filing, University President Lawrence S. Bacow wrote that diversity is “central to fulfilling” the school’s educational mission and “enhances education for all.”
“We remain steadfast in our belief that every college and university must retain the freedom and flexibility to create the diverse educational communities that will prepare their students for the opportunities and challenges they will confront in an increasingly diverse society.”
Will Ketanji Brown Jackson ’92 participate in the case?
Newly-seated Justice Ketanji Brown Jackson ’92 announced during her confirmation hearings in March that she would recuse herself from the Harvard case. Jackson graduated from the College and Harvard Law School and completed a six-year term on the University’s Board of Overseers in the spring.
How does the UNC lawsuit fit?
The same day SFFA sued Harvard in 2014, it filed a parallel lawsuit against the University of North Carolina. Because UNC is a public institution, the lawsuit invokes the Equal Protection Clause of the Constitution’s Fourteenth Amendment.
When the Supreme Court agreed to hear SFFA’s lawsuit against Harvard, it also took up the case against UNC, consolidating the two lawsuits. But it reversed its course and split the cases in July, a move that will allow Jackson to weigh in on the UNC case.
Legal representation for Harvard will be from Seth P. Waxman ‘73, a former United States Solicitor General while UNC will be represented by North Carolina Solicitor General Ryan Y. Park. SFFA’s case will be argued by Cameron T. Norris of Consovoy McCarthy.
Oral arguments are scheduled for Monday, though the Court’s opinion on the case is not expected until the summer of 2023.
—Staff writer Rahem D. Hamid can be reached at firstname.lastname@example.org.
—Staff writer Nia L. Orakwue can be reached at email@example.com.