SCOTUS to review affirmative action in college admissions

Supreme Court
The United States Supreme Court building in Washington, DC |

The U.S. Supreme Court has agreed to hear two cases that could overturn race-based affirmative action programs in higher education.

In a list of orders released on Monday morning, the high court agreed to hear Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions Inc. c. President and Scholars of Harvard College, consolidating the two cases.

The advocacy group argues that the admissions system at Harvard and UNC discriminates against Asian American and white students.

However, these challenges were dismissed by lower courts, which ruled that the schools’ policies were based on the government’s interests in promoting diversity.

A federal court in Boston ruled in favor of Harvard in 2018, a decision that was upheld by the United States Court of Appeals for the 1st Circuit in November 2020. The case was appealed to the Court Supreme last February.

After a federal court ruled against the UNC group’s lawsuit last year, the SFFA asked the Supreme Court in November to have the two cases heard together.

“We are grateful to the Supreme Court for accepting these important cases for review,” SFFA President Edward Blum said in a statement. “We hope judges will end the use of race as an admissions factor at Harvard, UNC, and all colleges and universities.”

Both cases concern whether to overturn the Supreme Court’s 2003 decision in Grumble against Bollinger, who supported an affirmative action policy at the University of Michigan Law School.

In the 2003 case, a white Michigan resident sued the university after being dismissed, claiming law school policy violated federal civil rights law and the 14th Amendment to the US Constitution.

A majority of Supreme Court justices at the time concluded that Michigan’s policy was not illegal, as racial preference was only one of many parameters of acceptance at school.

Justice Sandra Day O’Connor, a Reagan appointee, wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, John Paul Stevens and David Souter.

“Where race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the close fit requirement is also satisfied,” O’ wrote. Connor.

“Universities can…consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each applicant.”

Chief Justice William Rehnquist, another Reagan nominee, wrote a dissenting opinion to the 2003 decision. He was joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

“We said that when it comes to the use of race, the connection between the ends and the means used to achieve them must be precise,” Rehnquist wrote.

“But here the flaw is deeper than that; it is not simply a question of matching ends and means. Here, the means actually used are prohibited by the equal protection clause of the Constitution.

In 2016, the High Court issued a 4-3 decision upholding the right of the University of Texas to have a program that included race as an admissions factor, with Justice Anthony Kennedy authoring the majority opinion .

In a July 2021 article for Forbes, political science professor Evan Gerstmann argued that, given the current makeup of the Supreme Court, race-based affirmative action can be considered illegal.

The court has a 6-3 conservative majority with recent confirmations from Trump nominees Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh.

“His rulings have not been uniformly conservative thus far, but even the most centrist judges, like Chief Justice Roberts, have expressed much doubt about the use of race in college admissions,” wrote Gerstman.

“Furthermore, in 2003, the majority of the Supreme Court signed a decision stating that ‘the Court expects that in 25 years the use of racial preferences will no longer be necessary.’ This clock is almost sold out.

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