Supreme Court Separates Harvard, UNC-Chapel Hill Affirmative Action Cases

As the higher education community awaits perhaps the most consequential affirmative action ruling in almost 45 years, the U.S. Supreme Court (SCOTUS) has decided to separate cases involving Harvard University and The University of North Carolina at Chapel Hill (UNC-Chapel Hill).

What’s possibly motivating the SCOTUS decision? And what are the potential implications for affirmative action and diversity on college campuses?

These two cases, brought by Students for Fair Admissions — a nonprofit group opposed to racial preferences in college admissions — have been moving through the lower courts since 2014. Last January, SCOTUS decided to hear appeals involving both cases, consolidating the two given their similarities.

The Harvard case alleges the university has discriminated against Asian Americans in violation of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment. The one involving UNC-Chapel Hill features similar claims but adds white students into the argument.

On July 22, SCOTUS released an order noting that the two cases had been decoupled. One hour of oral argument has been allotted for each. The court is expected to hear the cases this fall.

What’s behind this move to separate the two cases? The court didn’t specify, but some speculate this allows Justice Ketanji Brown Jackson to participate in the UNC-Chapel Hill decision. Jackson, who joined the court in June, recused herself from the Harvard case given her prior status as a member of the university’s Board of Overseers.

With the two cases now separate, Jackson can vote in the UNC-Chapel Hill case and lend her voice to the affirmative action debate.

Another theory suggests the court could issue different opinions based on the public-private distinction.

“The main difference between the cases is that UNC is a state school and, as such, is subject to constitutional constraints that Harvard is not …,” wrote Nina Totenberg, NPR’s legal affairs correspondent. “By accepting both cases, the court can consider whether that public vs. private distinction matters for affirmative action.”

However, both types of institutions must abide by constitutional protections, explained Rachel Moran, distinguished professor of law at the University of California, Irvine School of Law, former dean of the University of California, Los Angeles’ School of Law, and an expert on civil rights and higher education and affirmative action.

“Although Harvard University is private and the University of North Carolina is public, they both must adhere to principles of non-discrimination,” Moran wrote in an email to BestColleges. “As a public institution, the University of North Carolina is bound by the Equal Protection Clause and must refrain from discrimination on the basis of race. Although Harvard is private, it accepts federal grants which bind it to refrain from racial discrimination under Title VI. The U.S. Supreme Court has said that the protections under the Equal Protection Clause and Title VI are co-extensive, so they are interpreted and apply in the same way.

“As a private entity, Harvard might claim that it enjoys greater autonomy from government regulation, but acceptance of federal monies undercuts this argument because the funding comes with strings attached.”

To be sure, the court’s consideration of a private school’s affirmative action policies does mark a departure from the past several affirmative action cases SCOTUS has heard. Those cases — Regents of the University of California v. Bakke (1978), Grutter v. Bollinger and Gratz v. Bollinger (2003), and Fisher v. University of Texas (2016) — all involved public institutions (Grutter and Gratz concerned the University of Michigan).

In advance of oral arguments, both Harvard and UNC-Chapel Hill recently filed briefs with SCOTUS defending their interests. Harvard’s brief cited the court’s consistent defense of race as a valid consideration in college admissions and emphasized the intrinsic value of diversity.

Guaranteeing equal protection under the Constitution “does not require us to disregard the commonsense reality that race is one among many things that shape life experiences in meaningful ways,” the brief states. “And nothing in the text or history of the Fourteenth Amendment suggests that universities must uniquely exclude race from the multitude of factors considered in assembling a class of students best able to learn from each other.”

Lawrence Bacow, Harvard’s president, reinforced the university’s interest in maintaining a diverse student body.

“We remain steadfast in our belief that every college and university must retain the freedom and flexibility to create the diverse educational communities that will prepare their students for the opportunities and challenges they will confront in an increasingly diverse society,” Bacow said in a statement.

North Carolina’s brief likewise defends the school’s right to foster a diverse environment.

“On campus, diversity promotes the robust exchange of ideas, fosters innovation, and nurtures empathy and mutual respect,” the brief argues. “It also looks to the future, equipping students with the tools and experiences necessary for success in the modern world.

At the same time, UNC-Chapel Hill aims to achieve diversity without considering race, the brief explains. The university gives “serious and ongoing consideration to race-neutral alternatives” and intends to adopt “the most promising strategies for attaining diversity in race-neutral ways.” Already, UNC-Chapel Hill says, race plays a “meaningful role” in only 1.2% of its admissions decisions.

Will such arguments help Harvard and UNC-Chapel Hill prevail? Many scholars and pundits don’t think so.

Linda Greenhouse, a senior research scholar at Yale Law School and former New York Times Supreme Court reporter, told the Yale Daily News it’s “extremely unlikely” that the court upholds affirmative action. Greenhouse surmises the court chose to hear the appeal because the majority of justices “want to change current law.”

Harvard law professor Richard Fallon Jr. agrees, claiming the mere act of granting a writ of certiorari betrays the court’s desire.

“There was no reason whatsoever for the Supreme Court to grant cert in this case,” Fallon told The Harvard Crimson, “except for the purpose of giving very serious consideration to either sharply cutting back on what it takes to be the legal permissibility of affirmative action or holding affirmative action to be unconstitutional altogether.”

Fallon’s Harvard colleague Alan Dershowitz recalled Justice Sandra Day O’Connor’s prediction in Grutter v. Bollinger that “25 years from now, the use of racial preferences will no longer be necessary to further the interest [in diversity] approved today.”

That was in 2003.

“There’s a strong likelihood that the court will do what Justice O’Connor said many years ago – saying that there was a time limit on race-based affirmative action,” Dershowitz told the Crimson. “And that time limit may have expired.”

Given the current makeup of the Supreme Court, such a decision wouldn’t come as a surprise. Totenberg describes this court as “the most conservative in 90 years.” The shocking reversal of Roe v. Wade is but one example of how far right the judicial pendulum has swung.

According to one analysis, conservative judges outnumber their liberal counterparts 6-3. This evaluation included Justice Stephen Breyer, deemed the second-most liberal justice, who retired earlier this year and was replaced by Justice Jackson, an appointee of President Joe Biden. Jackson’s appointment, therefore, doesn’t promise to swing the pendulum further left.

She won’t influence the Harvard decision anyway given her recusal, which leaves open the possibility, albeit unlikely, of a tie vote. Should that occur, the lower court’s opinion, in favor of the university, would stand.

Moran, of UCI’s law school, doesn’t believe Jackson’s presence or lack thereof will determine either outcome but suggests she’ll pen a dissenting opinion.

“I don’t think the Justice’s recusal is likely to affect the outcome in the Harvard case, given the current composition of the Court,” Moran wrote. “She is likely to be in dissent, and if she is, she can express her views in the North Carolina litigation. The decisions undoubtedly will be read together, as companion cases, so her views will be well-aired in the court of public opinion, even if she writes only in the North Carolina decision.”

All signs seemingly point to a decision declaring the consideration of race in college admissions unconstitutional. That’s only speculation at this point, of course, and the court could offer up some surprises.

But Roe offers a cautionary tale.

And what Roe was to abortion, the Regents of the University of California v. Bakke is to affirmative action in college admissions. The landmark case was the first SCOTUS statement upholding a university’s right to consider race among admissions factors. It cited the “Harvard model” of holistic admissions as an exemplar — one that is now seriously threatened by this pending case.

Subsequent cases — Grutter, Gratz, Fisher — confirmed the court’s stance, albeit with subtle differences among majority and dissenting opinions.

Reversing Bakke would send shockwaves across higher education.

In states such as California, Florida, and Texas, where affirmative action has been prohibited at public colleges, minority enrollments declined following decisions to ban the practice. A Supreme Court decision to eliminate affirmative action could widen participation gaps already plaguing colleges and universities.

Writing ahead of the Fisher decision in 2015, Columbia President Lee Bollinger issued a warning that resonates as even more pertinent now.

“To reverse affirmative action in higher education …,” Bollinger wrote, “is to pull a thread that could unravel the progress that has allowed so many sectors of our society to become more genuinely inclusive and reflective of a diverse nation.”