Thought Leadership

Supreme Court to Reconsider Legality of Affirmative Action Policies in Higher Education

The Supreme Court announced on January 24 that it will reconsider the legality of race-conscious admissions policies in higher education in cases against Harvard and the University of North Carolina at Chapel Hill. The Court has upheld challenges to affirmative action programs in colleges and universities in the past, including most recently in 2016. Changes in the composition of the Court could lead to a different outcome in the current cases.

The lawsuits against Harvard and UNC rely on Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination based on race, color, or national origin in any program or activity that receives Federal funds, including all public and most private higher education institutions. The UNC case also raises Equal Protection Clause challenges. The Equal Protection Clause prohibits state institutions from denying citizens equal protection of the laws and has been applied to extend protections against state sanctioned classifications based on national origin, sex, disability, and age.

The plaintiffs in the Harvard suit are Asian-American students who claim that Harvard’s use of subjective qualifications, such as likeability, courage, and kindness, discriminate against them based on race. The plaintiffs in the UNC case argue that the university discriminated against white and Asian applicants by giving preferences to students of other races. Each university contends that its race-conscious admissions practices are necessary to achieve diversity within their student populations, which the Court has previously recognized as a compelling interest.

The plaintiffs in each case invite the Court to reconsider and overrule Grutter v. Bollinger, the 2003 Supreme Court opinion that the universities rely on to support their affirmative action policies. In Grutter, the Court upheld a diversity-based affirmative action program at the University of Michigan that was narrowly tailored to promote the school’s compelling interest in promoting student diversity. The lawsuits argue that Grutter was “wrong the day it was decided” and that it impermissibly elevated amorphous pedagogical interests, such as lively classroom discussion, above the constitutional proscription against differential treatment among classes of citizens. Alternatively, the cases argue that the Harvard and UNC admissions policies do not comply with the narrow-tailoring requirements of Grutter because the policies penalize certain groups of students, engage in impermissible racial balancing, and fail to consider race-neutral alternatives.

The Supreme Court consolidated the cases for oral argument. The earliest it will hear arguments is October, at the beginning of the 2022-2023 term. A decision would likely be released in late Spring or early summer 2023.

The Harvard and UNC cases could have far-reaching impacts on the consideration of diversity in the admissions processes across the country. Because changes can be difficult to implement quickly after a Court decision, colleges and universities using affirmative action in admissions should begin thinking of race-neutral alternatives that can be put in place if the Court restricts or prohibits race as a consideration in admissions. For assistance on a review or other questions about the potential implications of the cases, contact Jackie Gharapour Wernz, Oleg Nudelman, or Elizabeth Humphrey. We will continue to follow and provide you updates on these cases.