The legal battle over affirmative action in higher education has been ongoing for decades — and this week, the volleys began anew.
On Monday, the Supreme Court heard arguments in a pair of cases that seek to put an end to universities' ability to consider race when evaluating applications for admission.
It's far from the first time affirmative action has been challenged in court. Since its inception amid the civil rights movement of the 1960s, major cases have come before the Supreme Court several times.
The court has repeatedly ruled in favor of universities' ability to consider the race of applicants, so long as it is one of many factors in an individualized admissions decision.
Now, these precedents could be in question as a newly conservative majority considers the cases this term.
Regents of the University of California v. Bakke (1978): Universities can consider race as a factor
In Regents of the University of California v. Bakke, which established the constitutionality of affirmative action programs, the Supreme Court considered a quota system in place at the University of California.
At the time, UC Davis reserved 16 out of every 100 spots for qualified minority students. Allan Bakke, a white man, was denied admission by the university's medical school despite having higher test scores than minority students who were admitted that year. He sued.
In Bakke, the court decided that the quota system was unconstitutional, along with the use of affirmative action policies to remedy the effects of racial discrimination.
But in a narrow majority, the court also ruled that schools did have a "compelling interest" in the educational benefits of having a diverse student body, which allowed them to consider race in admissions, so long as it was one of many factors considered. In the words of Justice Lewis Powell, "race or ethnic background may be deemed a 'plus' in a particular applicant's file."
Gratz v. Bollinger and Grutter v. Bollinger (2003): The modern precedent
This pair of decisions — especially Grutter v. Bollinger — laid out the blueprint for race-conscious admissions that has been widely used by universities since. Both suits were brought by white people who were denied admission to the University of Michigan.
In Gratz v. Bollinger, Jennifer Gratz and Patrick Hamacher sued over a points-based admissions system used by the university. At the time, the University of Michigan granted admission to any applicant who scored more than 100 points on a 150-point scale. Members of underrepresented minorities were each granted 20 points, and as a result, "virtually every" qualified applicant from these minority groups was admitted. The court found that the points system was unconstitutional because race had not been considered on an individualized basis.
But in Gratz's sister case, Grutter, brought by Barbara Grutter over her denial from the university's law school, the court upheld the basic concept behind affirmative action. Admissions officers could consider the race of applicants so long as they did so in a "narrowly tailored" and individualized way, the 5-4 majority found.
Notably, in Grutter, the court also said that race-conscious programs should not exist permanently. Writing for the majority, conservative Justice Sandra Day O'Connor expressed the expectation "that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
Fisher v. University of Texas (2013 and 2016): A failed attempt to overturn Bakke and Grutter
After being denied admission to the University of Texas in 2008, a white woman named Abigail Fisher sued the university over its race-conscious admissions policy in what was widely seen as an attempt to overturn the court's previous stances on affirmative action.
At the time of her lawsuit, the University of Texas automatically admitted Texas applicants who had completed high school in the top 10% of their graduating class, regardless of their race. For the remaining spots in each incoming class — about a quarter of admissions — the university considered a variety of factors, including race. Fisher challenged only this discretionary part of Texas' admission policy.
When it first heard the case in 2013, the Supreme Court sent it back to a lower court. Then, in 2016, the justices ruled in favor of the university, finding that its admissions program was, in fact, constitutional.
Although Justice Anthony Kennedy ultimately voted to uphold the Texas admissions policy, he also wrote in the 2013 decision that universities must demonstrate, "before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."
Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (likely 2023)
The two cases heard Monday are separate but similar. Together, they seek to overturn Grutter and share a central question: Does any consideration of race in the college admissions process constitute a violation of the Equal Protection Clause?
The cases are similar in that the plaintiffs say the schools discriminated against white and Asian American applicants during the admissions process by giving extra preference to Black, Hispanic and Native American applicants. The Harvard College case goes further, claiming discrimination against Asian American applicants, which Harvard denies.
Both cases were brought by a conservative group called Students for Fair Admissions, whose head, Edward Blum, also bankrolled the Fisher case.
Both Harvard and the University of North Carolina say they consider race as one of many factors, alongside considerations such as extracurricular activities, socioeconomic background and military veteran status, and do so within the constitutional guidelines set by Grutter. The schools also say that their attempts to use race-neutral ways of diversifying their student bodies have been unsuccessful.
The 2016 Fisher ruling came as a surprise to many. Now, with six of the Supreme Court's nine justices appointed by Republicans, the court is even more conservative than it was then. A decision to completely overturn Grutter could have dramatic effects in the college admissions world: Over 40% of U.S. universities consider race at some point during the admissions process, according to a brief filed by Harvard.
The court's newest justice, Ketanji Brown Jackson, has recused herself from the Harvard case but remains on the UNC case. The rulings are likely to come next summer.
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