Supreme Court to Decide on Affirmative Action at the University Level - American Society of Employers - Anthony Kaylin

Supreme Court to Decide on Affirmative Action at the University Level

supreme courtOn Monday January 24, 2022, the U.S. Supreme Court decided to take up the Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina cases, both affirmative action cases concerning the admission processes and policies of private (Harvard) and public (University of North Carolina) universities.  The Harvard case went through a trial and review by the 1st U.S. Appellate Court whereas the University of North Carolina (UNC) case has not been reviewed by the 4th Circuit Court of Appeals.

These cases combined will be taken up in the 2022-2023 Supreme Court term and focus on the 2003 decision in Grutter v. Bollinger involving the University of Michigan Law School.  The majority had ruled that race may be used to achieve a diverse student body, but it must be part of a holistic examination of a student applicant and must be narrowly tailored to achieve the diversity goal.  In that case, Chief Justice Burger questioned the validity of the statistics pointing out in a descent that it appeared that the selection was a quota system.  The percentages of those applied by race were very close to the ones who were accepted and eventually enrolled in the school.  Quota systems are discriminatory and illegal under the law.

In both cases, Students for Fair Admissions (SFFA) argued that Asian Americans are penalized for their race, to the benefit of less-qualified Black or Hispanic applicants.  They generally have higher scores but are treated differently than others who apply.  More specifically, in the Harvard case, they argued that that the Supreme Court in the Grutter decision improperly afforded “broad deference to university administrators to pursue a diversity interest” and endorsed “amorphous and unmeasurable” racial objectives. “Unsurprisingly then, universities have used Grutter as a license to engage in outright racial balancing,”

Harvard stated that race is used only as a "tip" or a "plus factor" in a narrowly tailored way in order to achieve on-campus diversity and the benefits that flow from it.  According to Harvard’s website, Harvard’s freshman class is roughly one-quarter Asian American, 16% Black, and 13% Hispanic. “If Harvard were to abandon race-conscious admissions, African-American and Hispanic representation would decline by nearly half,” the school told the court in urging it to stay out of the case.

In the UNC case, SFFA stated that “[l]ike Harvard, UNC rejects any race-neutral alternative that would change the composition of its student body, even if those alternatives would improve overall student-body diversity. But public schools have no legitimate interest in maintaining a precise racial balance, and they have no compelling interest in preventing minor dips in average SAT scores.”

North Carolina responded to the petition for review by the Supreme Court by stating that “[m]ore than 40 years ago, this Court adopted a framework for the lawful use of race in university admissions. The record here, developed after an eight-day bench trial, shows that the University of North Carolina at Chapel Hill has faithfully adhered to that framework.”

Admissions officers see a possible disparate impact issue by the fact that just admitting students with the best grades or only taking those with top SAT or ACT scores (both neutral on its face), students would lose opportunities whose schools had limited course offerings or who couldn’t afford expensive test-prep programs, many of them minority dominated school districts.

However, the Supreme Court, in granting cert, may be signaling that the Grutter case will be overturned.  The last university affirmative action ruling was the Fisher v. University of Texas at Austin case in 2016.  It was a 4-3 decision written by Justice Anthony Kennedy and supported by Justice Ruth Bader Ginsburg.  With the make-up of today’s Supreme Court, affirmative action at least in the university level may be taking its last hurrah. Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, called it "overwhelmingly likely" that at least some justices agreed to hear these cases with the idea of bringing about sweeping change to the admissions processes.


Source:  The National Law Review 1/24/22, The Wall Street Journal 1/24/22, Employment Law 360 1/24/22, Yahoo News 1/24/22

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