Law & Courts

Affirmative Action Cases Lead What Could Prove Another Momentous Supreme Court Term

By Mark Walsh — September 22, 2022 7 min read
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
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Affirmative action in school admissions leads the list of cases of interest to educators as the U.S. Supreme Court prepares to open its 2022-23 term, just months after wrapping up a term that saw several momentous rulings for K-12.

The justices, who return Oct. 3, will hear arguments Oct. 31 in Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199) and Students for Fair Admissions v. University of North Carolina (No. 21-707). While the disputes involve college admissions, their outcome will likely be felt significantly in K-12 schools.

“These cases are important cases,” said Deborah Archer, a professor and co-faculty director of the Center on Race, Inequality, and the Law at New York University School of Law. “Race continues to matter. … We continue to wrestle with racial inequality in our schools.”

In addition to the affirmative action cases, education law experts are paying attention to cases granted for review in the areas of copyright, American Indian law, and the tension between civil rights protections for LGBTQ individuals and those with religious objections.

And the justices will continue to add more cases for argument in the new term, with one or more possible grants in the area of special education.

So far, however, nothing on the education docket rivals the cases in the 2021-22 term that expanded free speech protections for religious expression by educators, made it easier for religious private schools to participate in state aid programs, and rolled back the federal constitutional right to abortion, which has had implications for educators and students.

The court may be poised to overrule more longstanding precedents in admissions cases

The Harvard and UNC cases involve challenges to how those institutions sometimes take account of race in the admissions process. Students for Fair Admissions contends that Harvard engages in illegal racial balancing and penalizes Asian-American applicants. Harvard argues that it only considers race as one factor among many in its admissions process as needed to pursue a racially and ethnically diverse student population. Its admissions program was upheld by a federal district court and the U.S. Court of Appeals for the 1st Circuit, in Boston.

The University of North Carolina argues that diversity in higher education remains an essential goal and that race-neutral options are unworkable.

SFFA argues that UNC has failed to use workable race-neutral alternatives in its admissions program, but the university’s system was upheld by a federal district court. The Supreme Court decided to add the UNC case to its consideration of the Harvard case before a federal appeals court could rule in the former.

As Education Week has reported, the college-admissions cases hold implications for certain race-conscious practices in K-12 schools, such as in admissions to selective magnet schools. Numerous K-12 groups have filed briefs in support of Harvard and UNC.

Several legal experts said that if there was one lesson from last term, which saw the court overruling its most contentious decision of the last half-century—Roe v. Wade—it was that no one should be surprised if the conservative majority is prepared to overturn key precedents in affirmative action. That could include 1978’s Regents of the University of California v. Bakke, which upheld diversity as a proper means for considering race in admissions, and 2003’s Grutter v. Bollinger, which allowed for the use of race in a holistic admissions program.

“If I’m right that the court is really reversing excesses from the [Chief Justice Warren E.] Burger court, then the next step is Bakke,” said Ilya Shapiro, a senior fellow at the conservative-leaning Manhattan Institute.

Roman Martinez, a partner at Latham & Watkins LLP who frequently argues before the court but is not involved in the affirmative action cases, said at a recent Georgetown University Law Center panel on the upcoming term that “the court is more conservative now than it has been in any decade since Bakke.”

“If you just count noses, they are more likely to be skeptical” of race-conscious admissions, he said.

Some progressive advocates have wondered how the court’s three liberal members might pick up the necessary votes of two conservatives in favor of Harvard and UNC or limit any scaling back of existing precedents. But the two conservatives closest to the middle, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, have expressed skepticism of race-conscious policies, with Roberts having written the 2007 decision in Parents Involved in Community Schools v. Seattle School District, which sharply limited school districts from voluntarily using race in assigning students to schools.

“It is most certainly an uphill climb” for Harvard, UNC, and advocates of race consideration to win in the Supreme Court, said Archer, the NYU law professor who is also national board president of the American Civil Liberties Union, which has filed a friend-of-the-court brief in support of Harvard and UNC.

Devon Westhill, the president and general counsel of the Center for Equal Opportunity, a conservative Washington think tank that opposes racial preferences in education, said he is looking forward to the fact that new Justice Ketanji Brown Jackson will be participating in the UNC case. (Jackson, until recently a member of Harvard’s Board of Overseers, has recused herself from the Harvard case.)

“She can weigh in on the UNC case. I think that’s actually a good thing,” Westhill said at a recent Federalist Society panel on the new term in which he discussed his own biracial background. “I think it’s important to hear from the first black female on the Supreme Court of the United States how she feels about race consciousness in American life.”

Other cases for educators to watch.

Among the other cases the court has on its docket are a few that, while not directly about education, may have consequences for schools:

Copyright—Schools and colleges tend to pay attention to any copyright case in the high court, and the case of Andy Warhol Foundation for the Visual Arts v. Goldsmith (No. 21-689) certainly has interesting facts. The case involves a 1981 photograph by Lynn Goldsmith of the rock singer Prince, which was used with permission as the basis for a work by the artist Andy Warhol for a commission from the magazine Vanity Fair. Warhol created 12 silkscreens based on the photo, and after Vanity Fair used a second one of them after Prince died in 2016, the photographer sued the late Warhol’s foundation for copyright infringement.

The issue is whether a work of art is transformative, and thus protected under the fair use defense to federal copyright law, when it conveys a different meaning from its source material. Museums, higher education institutions, and even Dr. Seuss Enterprises have weighed in on the case, with some briefs citing cases in which high schools were sued for alleged copyright infringement.

Arguments are set for Oct. 12.

Indian law—In Haaland v. Brackeen(No. 21-376), the court will weigh the constitutionality of the Indian Child Welfare Act of 1978, which addresses child custody and removal of Native American children from their families, and was motivated in part by the nation’s history of placing such children in substandard boarding schools. The case focuses on the federal law’s requirement that in child custody proceedings involving an Indian child, preference be given to placing such a child with his or her extended family or other members of the child’s tribe. Challengers, including the state of Texas and individuals who say the statute embraces a form of race discrimination that violates the U.S. Constitution’s equal-protection guarantee.

Arguments in the case are set for Nov. 9.

Religious and free speech objections to LGBTQ individuals—Educators paid attention to the Masterpiece Cakeshop case four years ago, involving a Christian baker who refused to bake a wedding cake for a gay couple. The court ruled for the baker, but on the narrow ground that he did not get a fair hearing before the Colorado Civil Rights Commission. The case of 303 Creative LLC v. Elenisis a sequel, this time involving a website designer who is seeking a declaration that she does not have to design wedding websites for LGBTQ couples.

A decision in this case has potential implications in education where religious private schools seek a First Amendment-based exemption from local or state civil rights protections for LGBTQ people. Just this month, Yeshiva University in New York City sought emergency relief from the Supreme Court from state court orders requiring it to recognize a “pride alliance” club. The Supreme Court declined relief for procedural reasons, but four justices issued a dissent saying that if the case comes back to the court, Yeshiva would likely prevail on its claim that recognizing the LGBTQ club would violate its religious beliefs.

No argument date has been set for the wedding website designer’s case.

A version of this article appeared in the September 28, 2022 edition of Education Week as Affirmative Action Cases Lead What Could Prove Another Momentous Supreme Court Term


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