On Monday, the Supreme Court announced
that it will take up the fraught question of affirmative action in higher
education once again. In agreeing to hear two different cases brought against
Harvard University and the University of North Carolina, respectively, by Students
for Fair Admissions, the Court raises the possibility that a conservative
majority will bring down the curtain on a half century of race-based preferences
in college admissions. Doing so would overturn a series of contentious
decisions in which the Court has ruled that race can be used as a “plus factor”
within theoretically limited (but practically capacious) parameters.

In 2003, the Court ruled in Grutter v. Bollinger that institutions of higher education can use race as a consideration in admissions if that use is “narrowly tailored” to serve the institution’s “compelling interest” in “obtaining the educational benefits” of “a diverse student body” and individualized consideration is given to each applicant. Writing for the majority, however, Justice Sandra Day O’Connor also famously noted that “[the] Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Eighteen years have passed since Grutter, and the question now under consideration is whether the Court’s conservative majority will overturn that landmark ruling.

The two cases, which will be consolidated for oral arguments, are Students for Fair Admissions v. President and Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina.

In the Harvard case, the plaintiff
alleges that Harvard College’s admissions practices, previously upheld by a
federal district court and the US Court of Appeals for the First Circuit,
discriminate against Asian American applicants and, in effect, amount to a
quota system. Students for Fair Admissions is also asking the Supreme Court to
consider whether Harvard’s admissions practices violate Title VI of the Civil
Rights Act of 1964, which prohibits institutions receiving federal funding from
discriminating on the basis of race.

In the North Carolina case, the
plaintiff alleges that the University of North Carolina’s undergraduate
admissions practices, which use race as a consideration and were upheld by a
federal district court, also violate Title VI. Additionally, since UNC is a
public university, Students for Fair Admissions is also asking the Supreme
Court to consider whether UNC’s admissions practices violate the Equal
Protection Clause of the 14th Amendment, which applies to state institutions.

A video produced by Students for Fair Admissions argues that admissions rates for Asian American applicants at Harvard College are dramatically lower than their academic and extracurricular performance would predict. The video attributes this discrepancy to the “personality ranking” component of the application, on which Asian American applicants perform worse than applicants of other races, and suggests that this weaker performance is the result of racial bias.

Students for Fair Admissions explicitly charges that Harvard’s admissions practices violate the court’s ruling in Grutter to the extent that “Harvard is failing to use race merely as a ‘plus factor’ in admissions decisions.” According to Students for Fair Admissions, Asian American applicants in 2008 accounted for 55 percent of domestic applicants to Harvard with SAT scores above 2300, yet in that same year only 17 percent of enrolled students at Harvard were Asian American. Students for Fair Admissions argues that “only using race or ethnicity as a dominant factor in admissions decisions could, for example, account for the remarkably low admission rate for high-achieving Asian-American applicants.”

In a statement, Harvard President
Lawrence Bacow argued that “Harvard does not discriminate; our practices are
consistent with Supreme Court precedent; there is no persuasive, credible
evidence warranting a different outcome.”

In the UNC case, Students for Fair
Admissions charges that “UNC-Chapel Hill’s racial preference for each
underrepresented minority student” is essentially “a penalty imposed upon white
and Asian-American applicants,” looming “so large that race becomes the
‘defining feature of his or her application.’” For its part, UNC has claimed
that “we consider race or ethnicity in a limited way, as one factor,” alongside
“academic performance, test scores, class rank, essays, experiences,
circumstances, and potential to contribute to the educational environment.”

The two cases, which respectively involve the oldest institution of higher learning in the US and the oldest public flagship university in the US, are expected to be argued in the course of the Supreme Court’s next term, which will begin this October.

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