Supreme Court to Hear Affirmative Action Appeals
The Supreme Court announced this morning that it will hear Students for Fair Admissions’ (SFFA) appeal of its litigation opposing the consideration of race in Harvard’s undergraduate admissions process. In the formal language of the Court, it announced "Certiorari Granted" in the cases of SFFA versus the President and Fellows of Harvard College and versus the University of North Carolina. The SFFA cases, involving in admissions at a private and a public university, are considered the most potent opening to repeal affirmative action in admissions in decades, especially given the changed composition of the Court given the three appointees confirmed during the Trump administration. They will be consolidated for Court consideration, with one hour for oral argument.
SFFA lost the trial round and appeal of its suit against Harvard, and appealed to the Supreme Court for review in February 2021. It also lost its suit against the University of North Carolina.
Updated January 24, 2022, at 3:30 p.m.: In a statement, President Lawrence S. Bacow strongly reiterated the University’s support for its admission process as a critical part in diversifying the campus community, in support of Harvard’s educational goals. He said:
The Supreme Court decision to review the unanimous decisions of the lower federal courts puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities. Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all. The U.S. Solicitor General rightfully recognized that neither the district court’s factual findings, nor the court of appeals’ application of the Supreme Court’s precedents to those findings, warrants further review. Harvard will continue to defend vigorously its admissions practices and to reiterate the unequivocal decisions of those two federal courts: Harvard does not discriminate; our practices are consistent with Supreme Court precedent; there is no persuasive, credible evidence warranting a different outcome. The University remains committed to academic excellence, expanded opportunity, and diverse educational experiences—and to the perennial work of preparing students for fruitful careers and meaningful lives.
The outcome of the two cases, which the court consolidated on Monday, could have major implications for colleges and universities — both private and public — that consider race when deciding how to admit students. Students for Fair Admissions’ goal has been to get these case before the Supreme Court so that its firm majority of conservative justices will strike down affirmative action altogether.
The last time the Supreme Court weighed in on affirmative action was in 2016, when the justices unexpectedly ruled 4 to 3 to uphold the University of Texas at Austin’s race-conscious admissions policy. In that case, Fisher v. University of Texas at Austin,the court decided that the university could not achieve sufficient diversity in its admitted class without considering race in admissions decisions. In its ruling — made all the more surprising because it was written by Justice Anthony M. Kennedy, a conservative who cast the pivotal vote — the court explained in detail how colleges can create constitutional admissions policies that take applicants’ race into account.
That case was organized by Edward J. Blum, a conservative activist and leader of Students for Fair Admissions, often called SFFA. As with Harvard’s admissions policy, Chapel Hill’s was upheld in a federal district court. SFFA had asked the Supreme Court to hear the two cases together.
The Harvard case differs from the Texas one in that it was brought on behalf of Asian American applicants, rather than a white applicant. In a three-week trial that took place in Boston in 2018, Students for Fair Admissions’ lawyers argued that Harvard admissions officers penalized Asian American applicants by consistently awarding them lower scores on metrics used to judge students’ personalities. The lawyers alleged that the university ignored race-neutral alternatives for achieving diversity, attempted to “balance” its class by race, and sought to fulfill racial quotas, which is illegal.
But Allison D. Burroughs, the federal district judge, disagreed, and the U.S. Court of Appeals for the First Circuit upheld her decision in November. The appeals court ruled that there was no evidence of racial bias in Harvard’s admissions practices and that the university’s narrow use of race in admissions passes the “strict scrutiny” standard.
The Supreme Court had asked the Biden Administration’s solicitor general whether the federal government had an opinion on the litigation. In that brief, the solicitor general argued that the Court should not take the case (i.e., should deny SFFA’s petition for review), and shold let the lower court decisions stand). The Court’s decision to take up the cases, the Chronicle noted, “does not necessarily mean the definitive end of race-conscious admissions. The court could rule on a technical issue or take a narrow view of the case by objecting to something specific to Harvard, but not banning race-conscious admissions outright.”
Inside Higher Education reported, “The decision to hear the cases represents a chance for opponents of affirmative action to reverse not only the Harvard and UNC decisions, but many others that have upheld the use of affirmative action since the Supreme Court ruled in the Bakke case in 1978. The decision comes at a time that the composition of the Supreme Court differs significantly from the last time it upheld the use of affirmative action in college admissions, in 2016, in a case involving the University of Texas at Austin.”
New York Times Supreme Court reporter Adam Liptak usefully summarizes the cases and the underlying legal doctrines here. A detailed Wall Street Journal report appears here. The SCOTUSblog suggests the cases will be argued in the court’s next term, beginning next autumn.
Updated January 25, 2022, at 3:15 p.m.: In a statement disseminated to the community today, President Bacow wrote:
Yesterday, the Supreme Court announced a decision that could put forty years of legal precedent at risk. Colleges and universities could lose the freedom and flexibility to create diverse campus communities that enrich education for all. Our admissions process, in which race is considered as one factor among many, makes us stronger. It prompts learning in day-to-day exchanges in our classrooms and laboratories, in our residential houses, and on our playing fields and stages. Our students understand these truths and see them reflected in their interactions with their classmates. Diversity opens our eyes to the promise of a better future.
Harvard celebrates and nurtures individuality as intensely as this nation. Those who challenge our admissions policies would ask us to rely upon a process far more mechanistic, a process far more reliant on simple assessments of objective criteria. Each of us is, however, more than our numbers, more than our grades, more than our rankings or scores. Ask yourself, how much have you learned from other people at this University? How much have you grown from conversations across difference? Would these conversations have been as rich if you had shared the same interests, the same life experiences, and—yes—the same racial or ethnic background as your fellow community members? This is why applications of any kind routinely go beyond mere numbers to include interviews, samples of work product, recommendations, and references. Narrowly drawn measures of academic distinction are not the only indicators of individual promise.
As the Supreme Court has recognized many times, race matters in the United States. I long for the day when it does not, but we still have miles to go before our journey is complete. Harvard will continue to defend with vigor admissions policies that were endorsed in the thoughtful decisions of two federal courts that concluded that we do not discriminate; our practices are consistent with Supreme Court precedent; there is no persuasive, credible evidence warranting a different outcome. Though I wish yesterday had turned out differently, I remain confident that the rule of law—and the respect for precedent that perpetuates it—will prevail.