On January 24, the Supreme Court granted certiorari in two closely-watched cases raising the issue of the constitutionality of the use of race in college admissions. The Court has consolidated the cases brought by Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina at Chapel Hill (UNC) and will most likely hear them this fall, with a decision to be issued in or around June 2023.
In each of these cases, SFFA asks the Court to not only find the admissions programs at these universities unconstitutional it also asks the Court to overturn the landmark precedent of Grutter v. Bollinger and Fisher v. University of Texas, which hold that the benefits of a diverse student body are a compelling interest under the Constitution that can support the narrowly-tailored use of race in a college admissions program.
Both Harvard and UNC have been successful thus far in proving that their race-conscious admissions programs are narrowly tailored to their compelling interest in the benefits of a diverse student body. Harvard was successful at trial and before the U.S. Court of Appeals for the First Circuit (see my previous examination of that case here) and UNC was successful at trial before the Middle District of North Carolina. SFFA asked the Supreme Court to grant certiorari in the UNC case before the U.S. Court of Appeals for the Fourth Circuit had an opportunity to review the district court’s decision so that the Supreme Court could consider it with the Harvard case.
The Harvard petition has been at the Court for a long time, having been filed on February 25, 2021. The Supreme Court asked in June for the United States to provide its views through the Office of the Solicitor General, and in December 2021, the Solicitor General encouraged the Court to decline review. (Click here for additional commentary on the Harvard case from December 2021.)
What Will Happen Next
While the Court has not officially announced when it will hear argument on these cases, it is expected that it will be this coming fall. (On January 21, the Court announced that it had granted certiorari in a different case and announced an expedited briefing schedule and that the case would be heard in April. That there is no expedited briefing schedule in the Harvard/UNC cases leads us to expect it will be heard next fall.)
Barring any extensions of time, SFFA’s briefs will be due in mid-March and the briefs for Harvard and UNC will be due in mid-April. Any amicus briefs supporting Harvard and UNC, barring extensions of time on the briefing schedule, will be due on or about April 18.
These are important cases because it is widely expected that the current Court will not support the holdings in Grutter and Fisher due to the turnover in justices since those cases were decided in 2003 and 2016. These cases may provide the Court with another opportunity to grapple with its views on stare decisis and how it applies when a majority of today’s Court believes that a constitutional holding is incorrect but that holding has been relied on for many years. Of course, in Grutter, Justice O’Conner wrote that the Court expected that affirmative action would no longer be necessary 25 years from that decision. A ruling in June 2023 on the Harvard/UNC case will be handed down 20 years after the Court’s decision in Grutter.
Counsel and leaders of higher education institutions that currently employ race-conscious admissions programs should be aware that the use of race in these policies may need to end or change radically after the Court decides this case as anticipated in the spring of 2023 and begin planning for such a possibility. Counsel should work with leadership to determine whether the institution is interested in joining the amicus efforts in support of Harvard and UNC, which are certain to be robust.