STEPHANIE SANCHEZ—Amidst a contentious term for the Supreme Court, the Court has already heard oral argument on subjects ranging from abortion to gun control and has issued numerous rulings on “shadow docket” cases ranging from gerrymandering to immigration. Based on a recent grant of certiorari, the Court is positioning itself for yet another momentous term by revisiting the question of affirmative action in higher education.
On January 24, 2022, the Court consolidated and accepted two cases challenging race-based admissions procedures: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. Because the University of North Carolina is a public school, it must comply with Title VI of the Civil Rights Act of 1964, which outlaws racial discrimination. Although Harvard University is a private institution, it receives federal funding and is thus also subject to Title VI provisions.
The plaintiffs argue that the admissions processes at Harvard and the University of North Carolina discriminate against White and Asian-American applicants. The evidence for this claim finds merit in studies that demonstrate Asian students, in particular, must earn 140 points more on the SAT than White students and 450 points more than Black students to obtain the same chances of university admission. The defendants, however, rely on Supreme Court precedent and on the character of “holistic” admissions to defend the policy. They argue that the admissions process considers variables like recommendation letters and personal essays to provide a broader profile of the applicant and that admissions of Asian students have increased in the past decade.
This is not the first time the Court has wrestled with the role of race in college admissions. In 2003, the Court in Grutter v. Bollinger affirmed that race could be a factor in admissions, so long as racial quotas were not utilized and the university was acting in good faith for educational interests. In 2016, the Court in Fisher v. University of Texas at Austin upheld the consideration of race in college admissions, but only under a standard of “strict scrutiny.” In effect, reviewing lower courts now have to balance whether admission policies are tailored to serve a compelling government interest and ensure that a race-neutral alternative would not achieve the same outcome.
Commentators have hypothesized that Students for Fair Admissions, Inc. presents an opportunity for the new 6-3 conservative majority to eliminate affirmative action policies. Interestingly, the plaintiffs quoted from the current Justices themselves arguing against race-based admissions in past cases to bolster their claims. They also cited to analysis in decades-past precedent, namely Grutter, suggesting that these policies may have an intrinsic lifespan and may reach a point where they are no longer needed. The plaintiffs argue that time is now. Nonetheless, in Fisher, the policy was upheld by a 7-1 majority, which included many members of the current Court.
Even though the conservatives upheld the policy, however, race considerations in admissions are now qualified with stricter standards of review or a higher showing of necessity. The analysis in Fisher is filled with limitations on the university’s policies and implements a “strict scrutiny” approach for any affirmative action policy called under review in the lower courts. In contrast, Grutter only limited the practice if quotas were used and the university acted in bad faith. Therefore, each time the highest Court has tackled affirmative action, the Court has pared back its applicability.
So, what will college admissions look like if the Court rules against race-based admissions policies?
For one, universities could no longer consider race as a factor in admissions and instead would have to opt for race-neutral policies. When this was implemented in the California university system, the results revealed a lower share of Black and Hispanic students and a higher share of Asian students in California universities relative to their share in high school graduation rates. In contrast, in the Florida university system, where affirmative action is also banned, schools like the University of Florida and Florida State University did not experience a major change in demographics after the ban, with the admission of Hispanic students actually growing. Additionally, schools may choose to include other policies to identify underrepresented groups, although the success of these programs has been mixed. Regardless, university freshman classes at these schools will likely experience some change to the composition of students come next admissions season if the Court rules against race-based admissions policies.