U.S. Supreme Court to Hear Two Higher Education Affirmative Action Cases in Upcoming Term

The U.S. Supreme Court recently announced that it would again consider the role race plays in college admissions by taking up two cases where race-conscious admissions policies are at issue. The two cases, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, were consolidated for oral argument and will likely be heard by the Court in the 2022-2023 term beginning in October. The Court’s decision to review these cases suggests that the Court may overrule its longstanding position that institutions of higher education may consider race as one factor in admissions for the purpose of diversifying the institution’s student body.  

As we detailed in a previous post, in the case involving Harvard University, the plaintiffs—Students for Fair Admissions (SFFA)—claimed that the university’s race-conscious admissions policies discriminated against Asian-American applicants. In October 2019, the First Circuit Court of Appeals upheld Harvard University’s use of race in its admissions process, finding the admissions program did not unduly disadvantage Asian-American applicants as compared to White students. SFFA filed an appeal of the First Circuit’s decision to the U.S. Supreme Court. 

Similarly, in the case involving the University of North Carolina, SFFA argued that the university discriminated against White and Asian-American students by using race to ensure “underrepresented minorities” were admitted. A North Carolina Federal District Court rejected the plaintiff’s arguments. The Court held that the university used its race conscious admissions program to enhance diversity in the student body and only considered race as one of many factors in the admissions process. Further, the university prohibited the use of race as a defining feature of any application.  

In both cases, SFFA asks the Court to overrule its longstanding 2003 decision in Grutter v. Bollinger, which was affirmed by its 2016 ruling in Fisher v. University of Texas. In these cases, the Court held that institutions of higher education could consider race as a factor in the admissions process, as long as it is only one of several factors considered and the institution has a good faith belief that there is an educational benefit to using race as a factor in its admissions decisions. The composition of the Supreme Court has changed since these decisions were issued with the addition of Neil Gorsuch, Brett Kavanagh, and Amy Coney Barrett. Commentators have observed in particular that Justice Gorsuch’s opinion in Bostock v. Clayton County provides a statutory framework that would argue against the continuation of affirmative action in higher education.  

We will continue to monitor developments in these cases closely and will bring you updates as they become available. If you have any questions about these cases or how to use race-conscious measures in a legally supportable way, contact any Franczek attorney.