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The Supreme Court will hear two cases that are likely to end affirmative action

The conservative Court adds more cases to its growing culture war docket.

A student walks through the campus of Harvard University in Cambridge, Massachusetts, in March 2020.
Maddie Meyer/Getty Images

The Supreme Court announced on Monday that it will hear Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, two cases that present an existential threat to affirmative action in university admissions.

These cases are the culmination of a years-long strategy by conservative activists — and by one activist in particular — to win a court decision invalidating affirmative action. The president of Students for Fair Admissions, the lead plaintiff in the Harvard and UNC cases, is not a student at all. It is Edward Blum, a former stockbroker who was also the driving force behind several other lawsuits asking the courts to expand the power and influence of white people.

The two cases are also the first challenge to race-conscious university admissions programs to reach the Court since Fisher v. University of Texas at Austin (2016), which imposed strict limits on affirmative action programs but did not forbid them entirely.

The Court that will decide these cases looks very different from the one that considered affirmative action in 2016. Fisher was a 4-3 decision, because Justice Antonin Scalia died several months before Fisher was handed down and Justice Elena Kagan was recused. The four-justice majority, moreover, included retired Justice Anthony Kennedy and the now-late Justice Ruth Bader Ginsburg.

Scalia, Kennedy, and Ginsburg have since been replaced by three reliable conservatives: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. So, barring an extraordinary surprise from at least two members of the Court’s 6-3 conservative majority, affirmative action is probably doomed.

Why affirmative action in university admissions is in deep trouble

After Fisher, universities may only make very limited use of race in their admissions process.

Take the Harvard case as an example. Harvard is an extraordinarily selective university. If you group all undergraduate applicants into deciles based on their academic records, Harvard still rejects more than 85 percent of applicants in the top decile. Race is one of several factors that can push an outstanding applicant who is on the cusp of admission into the pool of students invited to attend Harvard.

As a lower court that upheld Harvard’s admissions program explained, a student on the border between admission and rejection may be “tipped” into the pool of accepted applicants for a variety of reasons, including “outstanding and unusual intellectual ability, unusually appealing personal qualities, outstanding capacity for leadership, creative ability, athletic ability, legacy status, and geographic, ethnic, or economic factors.”

In practice, this means that, if two equally extraordinary applicants apply to Harvard, but one is white and the other is Latino, the Latino student is more likely to be admitted unless the white applicant has some other factor in their favor — perhaps the white student’s father attended Harvard, or perhaps the student is from a state that is underrepresented at the university.

The Harvard plaintiffs argue that even this limited consideration of race in admissions is illegal.

The Constitution generally views any policy that draws distinctions based on race as highly suspect, and a federal law — Title VI of the Civil Rights Act of 1964 — imposes the same restrictions on private universities such as Harvard that the Constitution applies to public universities with affirmative action programs.

Nevertheless, in Grutter v. Bollinger (2003), the Court held that the social benefits of diversity justify allowing universities to take a limited account of race when deciding who to admit as a student. “Numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals,’” the Court explained in Grutter.

Grutter also noted that “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” The Harvard and UNC plaintiffs ask the Supreme Court to overrule Grutter.

Conservative judges typically believe that the collective benefits society gains from having more diverse campuses must bow to the individual interests of college applicants. And, given the Supreme Court’s 6-3 divide, that conservative viewpoint is likely to prevail.

The Court’s decision to hear the Harvard and UNC cases adds two more major cases to the Court’s already-bulging culture war docket.

In Barrett’s first term on the bench, the Court made expanding the right of religious conservatives to seek exemptions from laws that they object to on religious grounds one of its highest priorities. And the Court heard cases earlier this term that could significantly expand gun rights, force taxpayers to fund religious education, and even overrule Roe v. Wade.

Understanding is critical

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