On Monday, January 24, 2022, the Supreme Court of the United States (the Supreme Court) announced it will hear a challenge to the use of affirmative action in admissions for institutions of higher education (IHE). The two combined cases at issue, which will likely be argued next fall, are Students for Fair Admissions v. Harvard College, No. 19-2005 (1st Cir. Nov. 12, 2020) (opinion), cert. granted, No. 20-1199 (Jan. 24, 2022), and Students for Fair Admissions v. University of North Carolina, No. 14-cv-954-LCB (M.D.N.C. Oct. 18, 2021), cert. granted, No. 20-119 (Jan. 24, 2022).
At issue in these cases is whether race can still be used as a factor in the admissions policies and practices of public and private IHEs. Specifically, the admissions policies of Harvard College and the University of North Carolina are being used to take direct aim at the Supreme Court's long-established precedent on this topic, the decision in Grutter v. Bollinger, 539 U.S. 306 (2003). This will be the first challenge to affirmative action in IHEs since President Trump appointed three new conservative justices.
Below we discuss the established precedent, procedural history of the cases being used to challenge that precedent, and potential ramifications should Grutter be overturned.
Grutter v. Bollinger and Currently Acceptable Admissions Practices
In 2003, the Supreme Court, in a 5-4 decision involving the admissions policies of the University of Michigan Law School, ruled that race may be used to achieve a diverse student body, but it must be part of a holistic examination of a student applicant and must be narrowly tailored to achieve the desired goal of diversity within the student body. (Grutter v. Bollinger, 539 U.S. 306 (2003)). To be a narrowly tailored race-conscious admissions program, the "program must consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." The Supreme Court ultimately held that narrow tailoring does not require IHEs to exhaust all alternative "race-neutral" admissions policies but rather, IHEs' admissions programs can consider how each applicant will contribute to the "intellectual and social life of the institution." Since Grutter and its predecessor, Regents of the University of California v. Bakke, 438 U.S. 265 (1978), IHEs are not allowed to establish quotas for certain racial or ethnic backgrounds, nor put individuals with a specific racial or ethnic background on a separate admissions track. Accordingly, IHEs had to change their admissions policies and practices after Grutter. IHEs could no longer give a predefined boost to applicants because of their race or have race be a decisive factor in admissions, as these policies are considered "impermissibly mechanical." Instead, IHEs must consider race and ethnicity holistically as an additional factor among others, such as GPA, standardized test scores, and community involvement.
Procedural History of the Challenging Cases
In the two imminent cases before the Supreme Court, the issues presented are (1) whether the Supreme Court should overrule Grutter v. Bollinger and hold that IHEs cannot use race as a factor in admissions; and (2) whether Harvard College violated Title VI of the Civil Rights Act and University of North Carolina violated the Fourteenth Amendment by engaging in racial balancing in their admissions practices. The underlying legal claims, however, are different for Harvard, a private college receiving federal funding, and University of North Carolina, a public university.
In Students for Fair Admissions v. Harvard College, the Petitioner, Students for Fair Admissions (Petitioner), alleges a violation of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin by any program or activity receiving federal funding. According to the Petitioner, Harvard "penalizes Asian Americans, admitting them at lower rates than whites, even though Asian Americans receive higher academic scores, extracurricular scores, and alumni-interview scores." In Students for Fair Admission v. University of North Carolina, the Petitioner alleges the school's admissions policies violate the Fourteenth Amendment, which guarantees equal protection under the law. In that case, the Petitioner asserts that the University of North Carolina's "use of race is the opposite of individualized; UNC uses race mechanically to ensure the admission of the vast majority of underrepresented minorities." The U.S. Courts of Appeals for the First Circuit and the Middle District of North Carolina ruled in favor of Harvard College and the University of North Carolina, respectively, citing the clear and established precedent of Grutter. Despite the Biden administration's urging to refrain from hearing these two cases, as "this [consolidated] case would be a poor vehicle for reconsidering Grutter," the Supreme Court decided to grant certiorari. In fact, the Supreme Court not only granted certiorari, but notably, it took up the case directly from the District Court, bypassing the U.S. Court of Appeals for the Fourth Circuit, just so the University of North Carolina case can be heard alongside the Harvard case. Historically, the power to grant certiorari of a district court's decision has been used sparingly, reserved for cases needing speedy determinations, like Watergate and the Iranian hostage dispute. In fact, before February 2019, the Justices went fourteen years without granting this expedited process once. However, since February 2019, the Justices have granted certiorari before judgement of a federal court of appeals fourteen times, including this instance.
How Will Admissions Policies Change if Grutter Is Overruled?
Should the Court overrule Grutter, IHEs will be forced to reconsider their admissions policies and their incorporation of race and ethnicity, perhaps leading to the absolute prohibition of consideration of these characteristics as factors in admissions. Instead of speculating about the Supreme Court's decision, however, IHEs should use this time before oral arguments and a decision to get ahead of the potential decision by reviewing their current admissions policies and learning which aspects of their policies may be at risk. IHEs can also form or reassemble any existing working groups that analyze and study "race-neutral" alternatives to their existing admissions policies that can potentially still generate a diverse student body. Some "race-neutral" alternatives IHEs have considered are guaranteeing admission to every in-state applicant who graduated in the top 10% of their high school class; a percentage plan that guarantees admission to top-ranked students while also admitting more students from low-income high schools; guaranteeing admission to students with a standardized test score above a certain threshold; and using the strength of a student's high school curriculum and a standardized testing threshold as criteria for admission.
We will continue to provide relevant updates as developments unfold. For now, any IHE with questions or concerns related to this recent challenge should reach out to the authors of this article or to any other members in Venable's Labor and Employment Group.