Supreme Court to Hear College Admission Affirmative Action Case in October

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, on April 23, 2021. Seated from left: Justices Samuel Alito and Clarence Thomas, Chief Justice John Roberts, and Justices Stephen Breyer and Sonia Sotomayor. Standing from left: Justices Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett. (Erin Schaff/Pool/Getty Images)

The nation’s highest court will hear arguments on whether current admission practices’ at some of the most elite universities in the country are unconstitutional.

If and after the plaintiff is successful, and the Supreme Court endorses its position, millions of incoming college students may find that their race and ethnicity are no longer a part of the credentials that they use to compete with their peers to get into their dream schools.

Current admission practices at universities like Harvard University treat White and Asian-American students with stricter admission standards—a practice some call reverse discrimination—Students for Fair Admissions (SFFA) alleges in its case against Harvard, currently before the Supreme Court.

The plaintiff is also seeking to overturn Grutter v. Bollinger, a 2003 Supreme Court decision that ruled the Fourteenth Amendment’s Equal Protection Clause does not prohibit American colleges from using race as a factor in admitting students.

An impressive list of supporters has stood behind Harvard University, including legal institutes, U.S. lawmakers, and even the United States Department of Justice’s top lawyer who’s a Harvard Law graduate herself, Solicitor-General Elizabeth Prelogar. Non-profit organizations and state attorney generals have backed SFFA by submitting amicus briefs.

The Supreme Court will hear the arguments for the case starting Oct. 31, according to a case calendar the court released on Wednesday.

The Supreme Court consolidated the Harvard case with a separate case in which SFFA sued the University of North Carolina.

Race in Admissions

The plaintiff argues that Grutter was “grievously wrong,” in that it “departs from the Constitution’s original meaning, contradicts other precedents, has eroded over time, and has no true defenders.”

“The Amendment, according to its framers, enshrines the principle that ‘free government demands the abolition of all distinctions founded on color and race,’” the plaintiff said, citing the Fourteenth Amendment. “That principle was not new: the self-evident truth that ‘all men are created equal’ was a cornerstone of the American founding.”

Yet, according to the SFFA, “Harvard uses race at every stage of the admissions process.”

“To begin, Harvard recruits high-school students differently based on race,” the plaintiff wrote. “African-American and Hispanic students with PSAT scores of 1100 and up are invited to apply to Harvard, but white and Asian-American students must score a 1350.”

“As admissions decisions are made, Harvard monitors the racial makeup of each class through ‘onepagers,’” the plaintiffs added, alleging that Harvard monitors its racial makeup with “meticulous attention” and has kept it “remarkably stable” across incoming classes.

The plaintiff further claims that Harvard gives “substantial” preferences for African-American and Hispanic applicants in its admissions.

“For example, an Asian American in the fourth-lowest decile has virtually no chance of being admitted to Harvard (0.9%); but an African American in that decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%),” the plaintiff’s petition reads.

Harvard, in its response (pdf), says SFFA’s petition offers a “thoroughly distorted presentation of the record” from lower courts. Harvard rejects the SFFA’s contention that the college “‘automatically’ awards ‘enormous’ preferences to all African and Hispanic applications,” and says that it factors in the race of an applicant in the admissions process “only in a flexible and nonmechanical way.”

The plaintiff further called for the overturning of Grutter, saying the case’s holding “that universities can use race in admissions to pursue student-body diversity” satisfies all the criteria that this Court considers when overruling precedents.”

“Despite reaffirming that ‘all’ racial classifications must satisfy strict scrutiny, Grutter held that ‘student body diversity’ can ‘justify the use of race in university admissions,’” the plaintiffs wrote. “That holding departs from the Constitution’s original meaning, contradicts other precedents, has eroded over time, and has no true defenders.”

“Grutter’s diversity rationale is not only uncompelling; it flouts basic equal-protection principles,” the plaintiff added. “Although Grutter praised the ‘educational benefits’ of student body diversity writ large, its assumption that a university can predict, based solely on race, an applicant’s ‘views’ or ‘experience[s]’ is little more than racial stereotyping.”

‘A Compelling Governmental Interest’

The case has received wide attention from sports and academic organizations, college admission boards, State AGs, and even lawmakers in the U.S. Congress.

Even the DOJ’s Solicitor-General, Elizabeth Prelogar, got involved.

Prelogar, who graduated from and once taught at Harvard Law School, filed an amicus brief in December 2021 supporting Harvard. She argued the Equal Protection Clause “permits racial classification” under the condition that it furthers “‘compelling governmental interests,’” and that, per the Supreme Court’s precedent, consideration of race in an admission program satisfies that condition.

Meanwhile, non-profits supporting the plaintiff compared the “racial hierarchy” in the admission process of American universities with “repellant stereotypes historically used to justify discrimination and violence against Asian Americans.”

“Admissions officers’ internal communications demonstrate that Asian Americans along with whites are at the bottom of UNC’s racial hierarchy. … Indeed, UNC’s discrimination is not subtle,” wrote Asian American Coalition For Education and the Asian American Legal Foundation in its amicus brief (pdf) submitted to the Supreme Court on the North Carolina case, which was consolidated with the Harvard case.

“In the nearly six decades since Congress enacted the Civil Rights Act of 1964, this Court consistently has recognized that achieving diversity in higher education is a compelling governmental interest,” wrote 14 current U.S. senators, all Democrats, and a former senator, a libertarian, in support of Harvard in a brief (pdf).

The Silicon Valley Chinese Association Foundation argued that Harvard’s consideration of race in its admissions is analogous to the “prejudicial assumptions and stereotypes that Harvard used in the 1920s and 1930s to justify its invidious discrimination against Jewish applicants in admissions.”

“Just as Harvard used methods in the 1920s and 1930s to identify applicants of sufficient ‘character and fitness’ as a pretext to discriminate against Jews, Harvard’s current use of the ‘personal rating’ to pursue student-body diversity is a pretext to discriminate against Asian Americans,” the foundation wrote.