Separated at Birth: Harvard, UNC Will Have To Defend Affirmative Action Independently, Scotus Says

And then there were two. The Supreme Court on Friday ordered that two consolidated affirmative action cases — Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina — be heard separately, injecting uncertainty into one of the high court’s most highly anticipated arguments this fall.Both of these cases aim to reverse Supreme Court precedent that allows for the limited use of race in admissions for institutions of higher education. In Fisher v. Texas, from 2016, the majority held that “consideration of race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class.”In an earlier case, Grutter v. Bollinger, the Nine held that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”Writing for the majority, Justice Sandra Day O’Connor noted that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Grutter was decided nearly 20 years ago, in 2003.In his dissent in Grutter, Justice Thomas wrote that affirmative action was “a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.” Strikingly, he quoted the dissent in Plessy v. Ferguson, to the effect that: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The decision, announced in a brief order, means that the cases against Harvard and UNC will be argued separately. When the Nine first took up the case, it welded the two together, at the urging of SFFA. Now separated, each will be allotted one hour for oral argument. The order, brief as it is, mentions that Justice Ketanji Brown Jackson “took no part in the consideration of this order.” During her confirmation hearings, Justice Jackson promised that she would recuse herself from the case involving Harvard. An alumna, Justice Jackson until recently served on Harvard’s Board of Overseers, one of the university’s governing bodies. She is not alone in her Cambridge ties, as four justices on the court matriculated at Harvard Law School. Justice Elena Kagan served as that school’s dean before acceding to the high court. With the cases now split, Justice Jackson will presumably be able to hear the one involving UNC, even as she sits out its Harvard twin. There are other differences that might be salient besides Justice Jackson’s presence. SFFA has argued that both cases present “similar or identical issues of importance already pending before the Court.” That is true inasmuch as they both turn on Title VI of the Civil Rights Act of 1964, which bans recipients of federal funds from discriminating “on the grounds of race, color, or national origin.” However, UNC’s status as a public university implicates the Equal Protection Clause of the 14th Amendment, a higher stakes question. At issue is whether admissions policies that take race into account offend the Constitution’s dictate that neither states nor the federal government may “deny to any person within its jurisdiction the equal protection of the laws.”

Separated at Birth: Harvard, UNC Will Have To Defend Affirmative Action Independently, Scotus Says

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