Takeaways and Predictions from Oral Argument in UNC and Harvard Cases at the Supreme Court

November 3, 2022
Firm Publication

On October 31, the Supreme Court heard the much-anticipated oral arguments in the cases brought by Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina at Chapel Hill (UNC), challenging each institution’s race-conscious student admissions program. SFFA asked the Supreme Court to overrule Grutter v. Bollinger and related cases holding that higher education institutions may use race-conscious admissions programs as long as they do so to further a compelling interest in the educational benefits of diversity through narrowly tailored means.

Due to changes in the Court’s personnel since the Court last examined this question in 2016, many predict that the Court will overrule Grutter and thereby prohibit higher education institutions from using race-conscious admissions policies. At oral argument, the Justices’ questioning gave little cause to believe those predictions would be wrong. Some areas pursued by the Justices, however, provide insight into what may be coming from the Court and what colleges and universities may be able to consider post-Grutter in the quest for diverse student enrollments. Institutions that use race-conscious admissions programs should prepare now for changes to those programs after the Court issues its decisions in these cases, expected by June 2023.

Background

At both Harvard and UNC, race is one of many factors that the admissions committee considers as part of a holistic review of each applicant for undergraduate admission. SFFA challenged these admissions programs alleging that they violated the Equal Protection Clause of the Fourteenth Amendment (for UNC) and Title VI of the Civil Rights Act (for Harvard). Harvard and UNC both prevailed after full trials, and Harvard’s win was affirmed by the Court of Appeals for the First Circuit. The courts below found that UNC and Harvard had each proved that under the Supreme Court’s precedent in Grutter and the decision in Fisher v. Univ. of Texas, their use of race was narrowly tailored to the university’s compelling interest in the educational benefits of diverse student enrollments.

Before the Supreme Court, SFFA primarily argued that Grutter should be overruled and secondarily argued that the use of race by Harvard and UNC did not meet the standards set by the Court in Grutter and reaffirmed in the Fisher case.

Grutter was decided in 2003 by a five-four vote. The membership of today’s Court has changed greatly in the intervening years. Three members of today’s Court – Chief Justice Roberts and Justices Thomas and Alito – have already dissented in either Grutter or Fisher and so can be expected to overrule Grutter. Three additional members of the Court – Justices Gorsuch, Kavanaugh, and Barrett – are expected to be more in line with those who dissented in Grutter and Fisher. That leaves only three Justices – Sotomayor, Kagan and Jackson – expected to support Grutter. In addition, Justice Jackson recused herself from the Harvard case, having formerly served on Harvard’s board, and so is participating only in the UNC case.

Oral Argument

The oral argument in the two cases lasted nearly five hours. In the UNC case, in addition to hearing from the parties, the Court also heard from counsel for students who had intervened on the side of UNC, and U.S. Solicitor General Elizabeth Prelogar.

The Court Appears Poised to Overrule Grutter

One of the surprises in the oral argument was what was not discussed. Justice Jackson was the only justice to bring up stare decisis, and she only did so at the end of the Solicitor General’s argument. A Court that was truly grappling with whether to overrule a decision that it disagreed with but believed deserved some precedential respect would be expected to ask the advocates how to approach the doctrine of stare decisis. Likewise, there were no questions about any reliance interests of institutions of higher education or society on Grutter, Fisher or the foundational decision in Regents of the Univ. of California v. Bakke. 

Instead, the members of the Court who have previously dissented in Grutter and Fisher (Thomas) or just Fisher (Roberts and Alito) asked questions that showed their continuing disagreement with the concept of race-conscious admissions. For example, although SFFA did not challenge the findings of the educational benefits of diversity, Justice Thomas asked every advocate for UNC and Harvard to explain to him what those benefits were. Justice Alito expressed concerns with the “Asian” category included in the Common Application, asking whether the use of such broad racial categories is “arbitrary and therefore unconstitutional.” Chief Justice Roberts stated as fact several times that Asian American students are being discriminated against in college admissions.

Justice Gorsuch also asked many questions along these lines, for example showing concern about the history of Harvard using its holistic admissions policy to institute a quota for Jewish students in the 1920s and asking the well-worn question of how an institution can consider the diversity of its class without instituting numeric goals or guidelines.

While Justices Sotomayor, Kagan and Jackson certainly asked difficult questions of the attorneys for SFFA and in so doing, defended the Grutter decision and the admissions programs of Harvard and UNC, the overall tenor and tone of the argument was decidedly lopsided against the universities.

If Grutter Is Overruled, What Will Constitute Unconstitutional “Race-Conscious” Action?

The Court appeared keenly interested in the advocates’ views on what higher education institutions would be allowed to consider if Grutter were overruled. In other words, what actions will be regarded as race-neutral in a post-Grutter world? Justice Kavanaugh asked SFFA’s lawyer whether a college could give a “plus” in its admissions process for descendants of enslaved people. (The advocate answered “no.”) There were many questions about essays written by hypothetical students that included their racial background, asking whether and in what circumstances an admissions officer in a post-Grutter world would be allowed to consider that information. While there were several questions where justices agreed that an applicant could disclose their race in their application if writing about overcoming discrimination, the advocate for Harvard noted that such a rubric could operate to reinforce racial stereotypes if students admitted from under-represented minority groups disproportionately identified race as an important feature of their identities.

Justice Jackson noted that to overrule Grutter might be to “have the potential of causing more of an equal protection problem than it’s actually solving.” Justice Jackson asked about two hypothetical students applying to UNC, each of whom writes about their family legacy as long-time North Carolina residents. One applicant, who is white, writes that his family has attended UNC for generations, and he wants to honor that legacy by attending UNC. The other applicant, who is African American, writes that his family has been prohibited from attending UNC for generations, and he wants to honor his family’s legacy by being the first to attend UNC. The advocate for SFFA answered that in this hypothetical, UNC could consider the essay of the white applicant but not the African American applicant in making admissions decisions. Justice Jackson expressed concern that in such an instance, one student could have his family’s history matter in admissions while the other student could not.

All these questions made clear that overruling Grutter will not end litigation against higher education institutions that strive to admit diverse student bodies. Careful thought and training of admissions committee members will be necessary in a post-Grutter world to sort through how applicants’ backgrounds may be considered in a race-neutral way.

Grutter‘s 25-Year Expiration Date

There were also many questions about Justice O’Connor’s statement in Grutter: “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Grutter was decided in 2003, 20 years from when a decision is expected in these cases, in June of 2023. Justice Kavanaugh attempted to engage SFFA’s advocate in the UNC case on whether Grutter’s 25-year limit, imposed in June 2003, meant that race-conscious means could not be used for the class graduating in 2028, rather than the class admitted in 2028, but the advocate instead answered that he did not see the 25-year limit in Grutter as a strict deadline. Advocates for SFFA argued that institutions continue to rely on race in admissions to an alarming degree and have not taken seriously the requirement to consider race-neutral alternatives. They argued that this proved that Grutter has failed and the consequence should be to overrule Grutter, not give it more time. Justice Barrett pointed out that if Grutter has its own “self-destruct mechanism” after 25 years, “we’re not to that 25-year point yet,” and wondered if the Court were obligated to give it more time.

Advocates for UNC and Harvard described the 25-year limit as an aspirational goal and pointed out that colleges and universities use race to a lesser extent than they did 25 years ago and that some colleges have chosen to stop using race entirely. In questioning from Justice Jackson, the advocate for UNC pointed out that the history of slavery and resistance to integrated higher education in that state meant that in North Carolina, race-conscious measures would be necessary for a longer period of time than in another state without such a history, emphasizing that the 25-year time limit should not be applied as a strict deadline.

Predictions?

Predictions based on oral argument are always a bit risky but perhaps less so in this case than in some others.

It appears clear that race-conscious admissions will not survive these cases. In one way or another, these cases will spell the end of race-conscious admissions in higher education. The only question is how and how quickly the rule in Grutter will end.

What seems most likely is that Bakke/Grutter/Fisher will be outright overruled with five votes coming from Roberts, Thomas, Alito, Gorsuch joined by Kavanaugh and/or Barrett.

What seems possible, but less likely, is that rather than overruling Grutter, the Court holds that the use of race in college admissions is over, but there is no need to overrule Grutter because the opinion itself stated that it was time-limited.  Even though it has not been 25 years since Grutter was decided, given that the Harvard and UNC cases are here now, the time has come. The experience with the issues demonstrates that 20 years is enough.

It also seems possible, but even less likely, that Justices Kavanaugh and Barrett will join together in an opinion that holds that Grutter will come to an end at the end of its 25-year deadline. They would have to agree on when that 25-year deadline is reached, which Justice Kavanaugh’s questioning reflects may be an open question for him. If both Kavanaugh and Barrett hold to this view, it would be the prevailing opinion of the Court.

What Should Institutions Do?

All institutions with race-conscious admissions programs should be planning for how to change those programs and policies with the assumption that they will no longer be able to use race as of June 2023. Institutions should also look at other programs or opportunities on campus for which race may be a factor and make plans to change criteria for those programs if they still need to do so.

If you have any questions about the Harvard and UNC cases or the use of race-conscious student admissions programs, please do not hesitate to contact the author.

To read additional background on these cases, please follow the links below: