The Supreme Court will hear cases challenging the admissions practices of two east coast universities that could influence the use of affirmative actions at public and private secondary education institutions.
Harvard University and the University of North Carolina have both been sued for using race as a factor in undergraduate admissions.
Race-conscious admission had previously been defended by late Justice Ruth Bader Ginsburg and Justice Anthony Kennedy, who retired in June of 2018.
The case against Harvard was filed by Students for Fair Admissions, which contends Asian-American applicants were illegally discriminated against and rejected at a disproportionately higher rate than students of other ethnicities.
The organization argues the practice violates students’ constitutional rights and previous precedent set by the Supreme Court."Harvard's mistreatment of Asian-American applicants is appalling," the plaintiffs wrote in their brief in the Harvard case. "That Harvard engages in racial balancing and ignores race-neutral alternatives also proves that Harvard does not use race as a last resort."
The case has been rejected by two lower federal courts.
"Harvard does not automatically award race-based tips but rather considers race only in a flexible and non-mechanical way; consideration of race benefits only highly qualified candidates; and Harvard does not discriminate against Asian-American applicants," the school wrote the court in its brief.
Harvard wants the court to affirm its precedent ruling that race can be a factor in college admissions, which was determined by a series of legal decisions beginning in 1978.
While racial quotas are prohibited, the court has allowed a student's race to be designated as a possible “plus factor” during the admissions process. Racial identity is only supposed to be used when administrators consider how to compose a student body of a certain level of diversity.
Students for Fair Admissions also sued UNC after the university allegedly declined to use race-neutral alternative admission practices to achieve a diverse student body.
"Public schools have no legitimate interest in maintaining a precise racial balance," wrote the organization in its brief to the court. "The same Fourteenth Amendment that required public schools to dismantle segregation after [Brown v. Board of Education] cannot be cowed by the diktats of university administrators."
Students for Fair Admissions wants the court to overturn the 2003 decision in Grutter v. Bollinger, where it ruled that the University of Michigan could factor race into its decision to accept a student because of its desire to create a diverse student body. The decision established the plus factor classification for the race in admissions that was subsequently adopted on a nationwide scale.
At the time, Supreme Court Justice Sandra Day O'Connor wrote that by 2028 "the use of racial preferences will no longer be necessary" in admissions.
The makeup of the court has changed since the last time it considered an affirmative action case — a 2016 lawsuit where it ruled in favor of the University of Texas. The additions of conservative Justices Brett Kavanaugh and Amy Coney Barrett have filled the seats of the previous liberal justices.
The Supreme Court is expected to hear the case during its 2022 term, which is held between October and June of 2023.
