Law & Courts

4 Things to Know About the Affirmative Action Showdown Before the Supreme Court

By Mark Walsh — October 28, 2022 9 min read
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The U.S. Supreme Court hears arguments Oct. 31 in two cases that may well hold the future of race in school admissions in the balance, both for K-12 and for higher education.

The cases of Students for Fair Admissions v. University of North Carolina (No. 21-707) and Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199) have been years in the making. But the justices have been flooded with briefs from legal scholars, educators at all levels including K-12, including teachers’ unions, public officials, corporations, generals, and other military experts, and students.

Here are four things to consider as the high court takes up these important cases.

The legacy of ‘Brown v. Board of Education’ continues to be debated

The Supreme Court’s landmark 1954 decision in Brown v. Board of Education of Topeka, which held school facilities separated by race to be “inherently unequal,” is widely considered the court’s most important decision of the 20th Century, if not more. Justice Brett M. Kavanaugh called Brown “the greatest moment in Supreme Court history” during his 2018 confirmation hearings.

But in the legal briefing for the Harvard and North Carolina affirmative action cases, the parties and their allies are engaged in a vigorous debate about the meaning of Brown, specifically whether the desegregation decision broadly requires schools and colleges to be “colorblind” when it comes to considering race and ethnicity.

“The position that prevailed in Brown is that the Constitution denies any authority to use race as a factor in affording educational opportunities,” Students for Fair Admissions argues in its merits brief.

Harvard responds in its brief that “no equivalence can sincerely be drawn between the segregation Brown rightly condemned and a university’s limited consideration of race among many characteristics to assemble a diverse class with many different backgrounds.”

The University of North Carolina, in its merits brief, also takes issue with Students for Fair Admission’s reading of Brown. The university says the landmark decision held that “the arbitrary separation of students based on race violates equal protection. Institutions like UNC that seek to bring students of diverse backgrounds together are the rightful heirs to Brown’s legacy.”

Meanwhile, the NAACP Legal Defense and Educational Fund, the same legal organization that won the Brown decision under its then-leader Thurgood Marshall, argues in a brief that “Brown did not espouse [SFFA’s] version of ‘colorblindness,’ which would require decisionmakers to willfully ignore ongoing racial inequality. ... To the contrary, Brown explained how the racial caste system established through chattel slavery demeans and subordinates Black people and thus promised to secure their equality in our educational system and as citizens of our democracy.”

Brown was based on the 14th Amendment’s equal-protection clause. At an oral argument earlier this month in a case about race consideration in congressional redistricting, Jackson, the court’s newest justice expressed her view that the drafters of the post-Civil War 14th Amendment intended the equal protection guarantee to be “race neutral” or “race blind.”

“And even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right?” Jackson said during the Oct. 4 arguments in Merrill v. Milligan.

K-12 groups highlight the importance of racial and ethnic diversity in schools

As Education Week has reported, numerous K-12 groups have filed briefs in the case, emphasizing the pipeline between high schools and colleges and that importance of diverse student enrollments is not limited to higher education.

“While this issue is not before the court in these consolidated cases, diversity is also a compelling interest in elementary and secondary schools,” says the friend-of-the-court brief of the Council of the Great City Schools, the association of the nation’s largest urban school systems.

The brief makes detailed arguments about the persistence of racial segregation at the K-12 level, citing a Government Accountability Office report from earlier this year showing that in 2020-21, “more than a third of students (about 18.5 million) attended a predominantly same-race/ethnicity school—where 75 percent or more of the student population is of a single race/ethnicity.”

Approximately half of all Black and Hispanic students attended schools with predominantly—75 percent or more—minority enrollment, the council says in the brief. “Because of racial isolation and educational inequality, race-neutral higher education admissions procedures are often inadequate to produce diverse college and university enrollments,” it says.

And there continues to be a need for narrowly tailored but race-conscious remedies for student assignment at the K-12 level, as permissible under the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District, the council’s brief says.

That decision barred most voluntary race-conscious measures for assigning students to schools, but did allow (under Justice Anthony M. Kennedy’s controlling concurrence in the case): strategic selection of sites for new schools; attendance boundaries drawn with “general recognition of the demographics of neighborhoods”; allocation of “resources for special programs”; “targeted” recruiting of students and faculty; and “tracking enrollments, performance, and other statistics by race.”

“As Justice Kennedy pointed out in his concurrence, the Constitution does not mandate that public schools sit idly by as the problems of segregation and racial isolation continue to grow,” the council’s brief says.

One brief examines the quirks of racial and ethnic classification in U.S. education

Chief Justice John G. Roberts Jr., who has been skeptical of race-conscious government actions in education and other contexts, wrote in a 2006 redistricting case, “It is a sordid business, this divvying us up by race.”

A provocative brief filed on the side of challengers to affirmative action focuses on some of the details of the “divvying.” The brief raises questions about the racial and ethnic classifications used in American education.

“Harvard and UNC use racial and ethnic categories that are arbitrary and irrational in the context of pursuing diversity” and thus fail scrutiny under the U.S. Constitution, argues the brief of David E. Bernstein, a professor at George Mason University’s Antonin Scalia Law School and the author of a forthcoming book, Classified: The Untold Story of Racial Classification in America.

Harvard and UNC classify students based on five racial categories: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African American; and (6) Native American, says Bernstein’s brief.

The categories are not unique to those schools, as they match the classifications used by the U.S. Department of Education, though the federal government has also offered “two or more races” in Census forms and other surveys for years now. Bernstein says these classifications stem from a 1970s effort by the federal Office of Management and Budget to standardize race and ethnicity data collected across the federal government.

“The racial and ethnic categories that Harvard, UNC, and universities across the country use in their admissions policies were created by executive-branch bureaucrats who specifically warned that they were not scientific or anthropological in nature and should not be used to determine eligibility for benefits in race-conscious policies,” Bernstein’s brief says. “The categories are imprecise, over- and underinclusive, and are not narrowly tailored to achieve educationally beneficial diversity.”

Bernstein also makes the point that applicants self-report their racial and ethnic identities, and that Harvard and UNC, as well as other colleges, do not make any attempt to verify such selections.

“The problem with relying on self-identification is that it invariably results in inaccuracies and disparate treatment of similarly situated applicants,” the brief says. “This is due to fraudulent and exaggerated claims of minority ancestry, confusion about how to self-identify, and inconsistent classification of multiracial applicants.”

The North Carolina case is stealing some of the spotlight from Harvard

Justice Lewis F. Powell Jr. wrote the controlling opinion in Regents of the University of California, v. Bakke, the 1978 decision that rejected racial quotas in student admissions but allowed for some consideration of race to promote diversity in higher education. He pointed to Harvard College’s plan as a constitutional means to achieve that goal. The “Harvard plan” used race or ethnicity as a plus factor in some admissions decisions but did not employ racial or ethnic quotas.

So some legal observers have viewed it as fitting that the Supreme Court would decide the future of affirmative action in education based on a challenge to Harvard’s more recent iteration of assigning “a plus factor” to underrepresented racial and ethnic minority group members in admissions.

But Students for Fair Admissions, the nonprofit group that challenged Harvard’s use of race, also sued the University of North Carolina at the same time. That case was moving slower than the Harvard case, and was awaiting a hearing in a federal appeals court (after a federal district judge upheld UNC’s use of race) when the Harvard case reached the high court.

But the justices accepted the invitation of SFFA to take up the North Carolina case alongside the one from Harvard. It seems likely that the justices wanted to consider the issue under both Title VI of the Civil Rights Act of 1964, which bars race discrimination in federally funded educational programs (covering Harvard and UNC), as well as under the 14th Amendment’s equal-protection clause, which governs a state university such as UNC but not a private institution such as Harvard.

Initially, the two cases were consolidated for argument and the Harvard case would have likely taken much of the attention.

With Justice Ketanji Brown Jackson joining the court in June, upon the retirement of Justice Stephen G. Breyer, she made it clear that she would recuse herself from the Harvard case. (She served on Harvard’s Board of Overseers until early this year.)

But she is participating in the North Carolina case. That led the court to separate the cases into two, distinct arguments. And based on its traditions, the court will hear the North Carolina case first on Monday, allowing Jackson to take the bench with her colleagues. Then, before the Harvard case is called, Jackson will slip out and return to her chambers, and her eight colleagues will remain to consider more recent versions of the “Harvard plan.”


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