Law & Courts

U.S. Supreme Court to Hear Major Cases on Affirmative Action in Education

By Mark Walsh — January 24, 2022 3 min read
A man talks on his phone on the steps of Harvard University's Widener Library, in Cambridge, Mass. on June 26, 2020.
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The U.S. Supreme Court on Monday agreed to take up major challenges to affirmative action in public and private universities, in two cases that will likely hold implications for race-conscious policies in K-12 education.

The justices granted review of lower-court rulings upholding the use of race in admissions at Harvard University and the University of North Carolina. It appears that the high court won’t schedule arguments until its next term as its current term is already filled with blockbuster cases on abortion rights, the Second Amendment, and religion and education.

The Harvard case, involving a private university, presented only a question of whether race-conscious admissions violated Title VI of the Civil Rights Act of 1964. The North Carolina case, involving a flagship state university, presents the question of whether such policies violate both Title VI and the equal-protection clause of the 14th Amendment.

Title VI applies to federally funded schools, while the equal-protection clause applies to governmental entities. Under either provision, the principles of the court’s decision will likely apply to race-conscious policies in public elementary and secondary education, such as selective admissions in competitive schools, school zoning decisions for enrollment, and student transfers.

“Only this court can address the widespread uncertainty on the lawfulness of the increasing use of race in American schools,” a group of former Republican officials in the U.S. Department of Education’s office for civil rights wrote in a friend-of-the-court brief that discusses both K-12 and higher education race-conscious policies.

The justices took up the Harvard case, Students for Fair Admissions v. President and Fellows of Harvard College (No. 20-1199), despite the views of the Biden administration that a lower court had ruled correctly.

A panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, had ruled in 2020 that Harvard had conducted a searching review of its use of race in admissions and had also found that race-neutral alternatives would not achieve the same results.

Meanwhile, Students for Fair Admissions, which is the challenger to affirmative action in both the Harvard and North Carolina cases, asked the high court to take up the latter case after a federal district judge upheld the state university’s consideration of race. The group sought to bypass a federal appeals court by asking the high court to consider the North Carolina case along with the Harvard case.

“This case and Harvard should be heard together,” said the group’s appeal in Students for Fair Admissions v. University of North Carolina (No. 21-707).

Edward Blum, the founder and president of SFFA, said in a statement that “It is our hope that the justices will end the use of race as an admissions factor at Harvard, UNC and all colleges and universities.”

In its 2016 decision in Fisher v. University of Texas at Austin (Fisher II), the Supreme Court ruled 4-3 to uphold UT’s race-conscious admissions plan, with Justice Anthony M. Kennedy writing that “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

That case was decided soon after the death of Justice Antonin Scalia, and with Justice Elena Kagan recused. Kennedy has since retired, and another member of the Fisher II majority, Justice Ruth Bader Ginsburg, died in 2020. The court’s three newest justices—Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett—have tilted the court further to the right on many issues.

The court’s decision on university admissions could set broad principles that would affect uses of race in K-12 education. Last year, for example, a group representing Asian-American parents sued the Fairfax County, Va., school district over a new admissions plan designed to boost racial, ethnic, and socioeconomic diversity at Thomas Jefferson High School for Science and Technology, a highly selective magnet program that is considered one of the top academic high schools in the nation.

No K-12 groups weighed in on the cases at the petition stage, but they likely will now that the justices have agreed to hear arguments.

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