Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes an opinion issued on January 24, 2022 (Part I); and cases granted review on January 21 and 24, 2022 (Part II).
Cases Granted Review: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 20-1199; Students for Fair Admissions, Inc. v. University of North Carolina, 21-707
Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 20-1199; Students for Fair Admissions, Inc. v. University of North Carolina, 21-707. In this brace of cases, the Court will reconsider the legality of race-based admissions policies, under both the Equal Protection Clause and Title VI of the Civil Rights Act, 42 U.S.C. §2000d et seq., at the nation’s oldest private college (Harvard) and the nation’s oldest public college (UNC). The Court granted cert to consider both (1) whether it “should overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions,” and (2) whether Harvard and UNC’s race-based admissions policies satisfy the demanding strict-scrutiny standard established by Grutter and its progeny.
These cases arise from two distinct yet related lawsuits. Students for Fair Admissions (SFFA), a nonprofit “dedicated to defending the right to equality in college admissions,” sued Harvard and UNC on the same day to challenge their respective admissions policies. Because Harvard is a private college, SFFA asserted that Harvard’s race-based admissions policy violates Title VI—which “bans race-based admissions that, if done by a public university, would violate the Equal Protection Clause”—because it uses race as a factor in the admissions process and because, even if race may be used as a factor under existing precedent, the policy fails to comport with that precedent. SFFA alleged that UNC’s race-based admissions policy violated both the Equal Protection Clause and Title VI for the same reasons. The district courts in both cases entered judgment on the pleadings for the schools on SFFA’s direct assaults on Grutter and, after lengthy bench trials, ruled that the schools’ respective policies satisfied strict scrutiny under the Court’s existing precedents in Grutter, Fisher v. University of Texas, 570 U.S. 297 (2013) (Fisher I), and Fisher v. University of Texas, 136 S. Ct. 2198 (2016) (Fisher II). See also Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (plurality opinion). The First Circuit affirmed the district court’s judgment in the Harvard case, concluding “that Harvard’s admissions program satisfies strict scrutiny because it does not penalize Asian Americans, engage in racial balancing, overuse race, or neglect race-neutral alternatives.” 980 F.3d 157. The Fourth Circuit has not yet reviewed the district court’s judgment in the UNC case because SFFA sought, and the Court granted, certiorari before judgment.
While acknowledging that “[o]verruling precedent is always serious,” SFFA argues that the Court should overrule Grutter “and hold that institutions of higher education cannot use race as a factor in admissions” because (1) “Grutter is grievously wrong,” (2) “Grutter has spawned significant negative consequences,” and (3) “Grutter has generated no legitimate reliance interests.” First, the petitions assert that “Grutter was wrong the day it was decided” because it “departs from the Constitution’s original meaning, contradicts other precedents, has eroded over time, and has no true defenders.” With respect to original meaning, the petitions argue that the Constitution forecloses any consideration of race in government decision making and emphasize that the Court in Brown v. Board of Education, 347 U.S. 483 (1954), “denied ‘any authority . . . to use race as a factor in affording educational opportunities.’” The petitions also argue that “Grutter’s diversity rationale” is both “uncompelling” and “flouts basic equal-protection principles.” SFFA points out that the Court has rejected several “interests as not compelling enough to justify racial classifications”—e.g., “[p]rotecting a child’s best interests,” “remedying societal discrimination,” and “[c]reating a racially diverse faculty”—and observes that it “is impossible to explain” why those “interests are not compelling” but “‘cross-racial understanding’ and ‘livelier’ ‘classroom discussion’ are.” SFFA also asserts that Grutter’s “assumption that a university can predict, based solely on race, an applicant’s ‘views’ or ‘experience[s]’ is little more than racial stereotyping,” and it questions “[t]he educational benefits that Grutter identified” because “Grutter . . . treats underrepresented minorities not as the beneficiaries of racial preferences, but as instruments to provide educational benefits for other, mostly white students.” The petitions go on to attack Grutter’s deference to schools’ “‘experience and expertise’” in determining whether to use race in admissions decisions as inconsistent with the legal presumption “that racial classifications ‘exacerbate rather than reduce racial prejudice.’” Moreover, the petitions contend, “Grutter’s narrow-tailoring reasoning” is similarly flawed because it allows universities to “reject race-neutral alternatives” simply because those alternatives may not comport with schools’ view of diversity or may “compromise their ‘reputation for academic excellence.’”
Second, the petitions argue that “Grutter has . . . proven ‘unworkable in practice” on several fronts. For one thing, because “[t]he only way to test whether a university’s obscure policies satisfy Grutter’s vague boundaries is through ‘prolong[ed]’ litigation,” plaintiffs often graduate from another institution before their claims are adjudicated. The petitions also highlight the “real-world consequences” of allowing admissions programs to “intentionally discriminate against historically oppressed minorities” (e.g., Asian-Americans). Third, SFFA argues that Grutter has not created any legitimate reliance interests because “no one has a legitimate interest in treating people differently based on their skin color,” and Grutter itself “‘contains its own self-destruct mechanism,’” for it “concludes with a warning that the Court expects ‘racial preferences will no longer be necessary’ in ’25 years.’”
With respect to the second question presented, petitioners argue that neither Harvard nor UNC’s admissions policies comport with the standard articulated and applied in Grutter, Gratz, and Fisher. SFFA asserts that, “[a]t Harvard, race is not a ‘plus’ that is always beneficial; it’s a minus for Asian Americans.” Further, in SFFA’s view, at Harvard “race is not a ‘factor of a factor of a factor’” but “an anvil on the scale that dominates the entire process.” SFFA argues that “Harvard penalizes Asian Americans” and “engages in racial balancing.” Moreover, petitioner insists that “Harvard has at least one workable race-neutral alternative”—eliminating “preferences for the children of donors, alumni, and faculty/staff”—that would “achieve greater racial diversity without using race.” Similarly, SFFA maintains that UNC’s admissions program also fails strict scrutiny because UNC refuses to use workable race-neutral alternatives merely “because they would change the racial and socioeconomic composition of UNC’s student body or lead to slightly lower average SAT scores.”
Respondents (Harvard, UNC, and “a multiracial, multiethnic group of students and now alumni” at UNC) all urge the Court not to overrule Grutter and to affirm the lower courts’ judgments that the Harvard and UNC policies satisfy strict scrutiny. Respondents contend that “achieving student-body diversity is a compelling government interest” because such diversity “foster[s] the ‘robust exchange of ideas.’” Relatedly, respondents say that limited deference to educational institutions “is appropriate because whether the benefits that flow from diversity are integral to a particular university’s mission is, ‘in substantial measure, an academic judgment,’ implicating academic freedom and First Amendment values.” Nor is recognizing “a compelling interest in the educational benefits of diversity” anomalous, they say, because the Court’s “precedents do not forbid all consideration of race in all circumstances,” but instead allow for race-based classifications that satisfy strict scrutiny. Indeed, respondents assert that “the historical record provides significant support for the proposition that the Fourteenth Amendment was originally understood to permit certain forms of race-conscious government action.” In their view, “Grutter remains vitally important for this nation’s progress because of the profound educational benefits that flow from student body diversity.” Respondents reject that notion that Grutter somehow contravenes Brown, arguing that Grutter “emphasiz[es] the educational and societal benefits of assembling diverse student bodies and prohibiting rigid racial classifications, such as quotas, that do not treat students as individuals and instead exclude them from educational opportunities based solely on their race.” Indeed, respondents say that “prohibiting consideration of race now would lead to substantial declines in diversity on many campuses, with significant adverse effects on the educational experiences of all students.” That, in respondents’ view, “would be a tragic mistake.” Respondents also reject SFFA’s view that Grutter has become unworkable, observing that the Court has not questioned its holding and that cases such as Gratz and Fisher have helped flesh out the Grutter standard for lower courts to apply. Lastly, respondents all warn that overruling Grutter would upend substantial reliance interests. For example, respondents assert, many colleges and universities nationwide have adopted flexible, individualized race-conscious admissions policies based on the Court’s decisions in Bakke and Grutter.
With respect to the second question, respondents argue that SFFA’s arguments distort the record and ignore the post-trial findings of the respective district courts. Harvard, for instance, argues that it established below that it does not intentionally discriminate against Asian Americans, that it does not engage in racial balancing, and that it considers race only as one “plus” factor in a flexible, individualized, holistic evaluation of each candidate. Regarding SFFA’s race-neutral alternative, Harvard argues that the lower courts found that it “would ‘come at significant costs’” because “it would decrease African-American representation by ‘nearly one-third’” and it “would diminish the strength of Harvard’s admitted classes.” UNC and the UNC Students similarly argue that SFFA refuses to grapple with the district court’s factual findings and reasons for rejecting SFFA’s proposed alternatives. Lastly, respondents argue that SFFA lacks standing to bring suit because it does not adequately represent its members.
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]