After the Supreme Court agreed Monday to take up a lawsuit challenging race-conscious admissions processes at Harvard and the University of North Carolina, legal experts say the case could spell the end of affirmative action in higher education.
The Supreme Court’s decision to hear the case marks the latest update in a contentious seven-year-long legal battle between anti-affirmative action group Students for Fair Admissions and Harvard. SFFA first sued Harvard in 2014, alleging that the school’s admissions practices discriminate against Asian American applicants.
Harvard Law School professor Richard H. Fallon Jr. said the Court’s choice to accept the petition could be “a major setback” for affirmative action initiatives.
“This is bad news for Harvard and Harvard’s admissions program, and it could turn out to be very bad news,” Fallon said.
“There was no reason whatsoever for the Supreme Court to grant cert in this case, except for the purpose of giving very serious consideration to either sharply cutting back on what it takes to be the legal permissibility of affirmative action or holding affirmative action to be unconstitutional all together,” he added.
Laurence H. Tribe ’62, who taught constitutional law at Harvard for 54 years, said he believes a majority of the current Supreme Court justices are in agreement with SFFA’s claims.
“It seems to me absolutely clear that six justices on the current Court believe that any consideration of race in university admission policies either violates the 14th amendment, in the case of a state university like the University of North Carolina, or violates Title VI, in the case of a university like Harvard that receives federal funding,” Tribe said. “I don’t think there’s any mystery about it.”
Harvard Law School professor emeritus Alan M. Dershowitz said the decision to grant certiorari, which requires four or more votes, suggests that at least four justices may vote against the consideration of race in college admissions.
“I believe there are three votes in favor of allowing it to be taken into account, and I think the deciding votes will be cast by the Chief Justice Roberts and probably Justice Kavanaugh, but perhaps Justice Barrett,” he said.
Despite predicting a likely victory for SFFA, Fallon praised the University’s legal team and Tribe said he remains confident in Harvard’s ability to adapt its admissions process should the Court strike down its current practices.
“Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition,” Tribe said. “But they will have to be more subtle than they have been thus far.”
Natasha K. Warikoo, a Tufts sociology professor who researches racial and ethnic inequality in education, said a ruling in favor of SFFA would be “incredibly problematic” for underrepresented minority applicants. Still, Warikoo said she is “cautiously optimistic” that the Court will uphold affirmative action.
“I don’t think it’s a done deal that they will rule against race-conscious admissions,” Warikoo said. “There’s been a lot of research showing the benefits of racial diversity on selective college campuses.”
SFFA first filed suit against Harvard in 2014, arguing that the school’s admissions practices violate Title VI of the Civil Rights Act of 1964, which bans institutions that receive federal funds from discriminating “on the grounds of race, color, or national origin.” The Massachusetts District Court ruled in favor of Harvard in October 2019, and the First Circuit Court affirmed the ruling in November 2020.
SFFA then petitioned the Supreme Court to take up the case last February, requesting that the justices overturn precedent set forth by the 2003 landmark case Grutter v. Bollinger. In its brief in opposition in May 2021, Harvard asked the court to deny SFFA’s appeal.
The Supreme Court delayed its decision to take action on the case in June when it requested input from the U.S. Solicitor General on the lawsuit. Though the Trump administration backed SFFA, the Biden administration sided with Harvard in December, urging the court to reject SFFA’s appeal.
Dershowitz predicted the Court’s decision on the case could have lasting implications on the future of affirmative action in higher education.
“There’s a strong likelihood that the court will do what Justice O’Connor said many years ago – saying that there was a time limit on race-based affirmative action,” Dershowitz said. “And that time limit may have expired.”
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