Supreme Court to hear challenge to use of race in admissions | Venable LLP



On Monday, January 24, 2022, the United States Supreme Court (the Supreme Court) announced that it would hear a challenge to the use of affirmative action in admissions to institutions of higher education (IHE). The two combined cases at issue, which will likely be heard next fall, are Students for Fair Admissions vs. Harvard Collegen° 19-2005 (1st Cir. 12/11/2020) (opinion), cert. allowedno. 20-1199 (January 24, 2022), and Students for Fair Admissions vs. University of North CarolinaNo. 14-cv-954-LCB (MDNC 18 Oct. 2021), cert. allowedn° 20-119 (January 24, 2022).

The question 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 used to directly target the Supreme Court’s longstanding precedent on this topic, the decision in Grumble against Bollinger, 539 US 306 (2003). This will be the first affirmative action challenge in IHE since President Trump appointed three new conservative justices.

Below, we discuss the precedent set, the procedural history of the cases used to challenge that precedent, and the potential ramifications expected. grutter be overthrown.

Grumble against Bollinger and currently acceptable admissions practices

In 2003, the Supreme Court, in a 5-4 decision involving the University of Michigan Law School’s admissions policies, ruled that race can be used to achieve a diverse student body, but it must be done. part of a holistic examination of a student. candidate and should be closely matched to achieve the desired goal of diversity within the student body. (Grumble against Bollinger, 539 US 306 (2003)). To be a narrowly racialized admissions program, the “program must consider all relevant elements of diversity in light of each applicant’s particular qualifications, and place them on an equal footing, without necessarily give them equal weight.” The Supreme Court ultimately ruled that narrow tailoring does not require IHEs to exhaust all alternative “racial-neutral” admissions policies, but rather that IHE admissions programs can consider how each applicant will contribute. to the “intellectual and social life of the establishment”. Because grutter and its predecessor, University of California Regents vs. Bakke, 438 U.S. 265 (1978), IHE is not permitted to establish quotas for certain racial or ethnic origins, or place persons with a specific racial or ethnic origin on a separate admissions track. As a result, IHEs had to change their admissions policies and practices after grutter. IHE could no longer pre-determine applicants based on their race or make race a deciding factor in admissions, as these policies are considered “unacceptably mechanical.” Instead, IHEs should consider race and ethnicity holistically as one additional factor among others, such as GPA, standardized test scores, and community involvement.

History of the difficult case procedure

In the two impending cases before the Supreme Court, the issues presented are (1) whether the Supreme Court should reverse the decision Grumble against Bollinger and argue that IHE cannot use race as an admissions factor; and (2) whether Harvard College violated Title VI of the Civil Rights Act and the University of North Carolina violated the Fourteenth Amendment by engaging in racial balance in their admissions practices. The underlying legal claims, however, are different for Harvard, a private college receiving federal funding, and the University of North Carolina, a public university.

In Students for Fair Admissions vs. Harvard College, the petitioner, Students for Fair Admissions (the 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 academic scores, extracurricular scores, and alumni interview scores.” higher students. In Students for Fair Admission vs. University of North Carolina, the petitioner alleges that the school’s admissions policies violate the Fourteenth Amendment, which guarantees equal protection under the law. In this case, the petitioner asserts that “the University of North Carolina’s use of race is the opposite of individualized; UNC mechanically uses race to secure admission for the vast majority of underclass minorities. represented”. The United States Courts of Appeals for the First Circuit and Intermediate 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 insistence on refraining from hearing these two cases, because “this [consolidated] the case would be a bad vehicle to reconsider grutter“, the Supreme Court decided to grant certiorari. In fact, the Supreme Court not only granted certiorari, but more importantly, it took the case directly to the district court, bypassing the Court of Appeals of United States for the Fourth Circuit, just so that the University of North Carolina can be heard alongside the Harvard case. Historically, the power to grant certiorari of a district court decision has been used sparingly, reserved for cases requiring a quick decision, such as Watergate and the Iranian hostage-taking. In fact, before February 2019, judges went fourteen years without once granting this expedited procedure. However, since February 2019, the judges granted fourteen times certiorari before judgment from a federal appeals court, including this instance.

How will admissions policies change if grutter is canceled ?

If the Court were to set aside grutter, IHEs will be forced to reconsider their admissions policies and their incorporation of race and ethnicity, perhaps leading to the outright ban on considering these characteristics as admissions factors. Instead of speculating on the Supreme Court’s decision, however, IHEs should use this time before oral arguments and a decision to anticipate the potential decision by reviewing their current admissions policies and learning what aspects of their policies may be at risk. risk. IHEs can also form or reassemble any existing working groups that analyze and explore “racial-neutral” alternatives to their existing admissions policies that can potentially still generate a diverse student body. Some “race-neutral” alternatives that IHE has considered guarantee admission to every applicant in the state who graduated in the top 10% of their high school class; a percentage plan that guarantees admission to top-grading students while admitting more students from low-income secondary schools; guarantee admission to students whose standardized test results exceed a certain threshold; and using the strength of a student’s high school program and a standardized test threshold as admission criteria.

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