Supreme Court Will Hear Affirmative Action Cases. What Happens Next?

U.S. Supreme Court BuildingOn Monday, the conservative-majority U.S. Supreme Court announced it will hear an appeal of a ruling that Harvard University’s use of affirmative action in admissions is legal. In addition, the Court will hear an appeal of a similar decision that the University of North Carolina at Chapel Hill (UNC)’s use of affirmative action is legal.

Through these cases, which the Supreme Court will consolidate, affirmative action opponents could reverse the Harvard and UNC decisions as well as overrule previous cases that have upheld the use of race-conscious affirmative action in college admissions since Regents of the University of California v. Bakke in 1978.

While some legal and higher education experts say that affirmative action may not be overturned given precedent, with the makeup of the court today, others voice concern that the end is in sight and colleges may soon need to turn to other means to enhance diversity.

“First of all, the news was not unexpected,” said Victor Goode, an associate professor at the City University of New York (CUNY) School of Law, who previously worked as part of the legal team that filed amicus briefs in three landmark affirmative action cases (Bakke, Weber, and Fullilove). “Most of the civil rights community was pretty sure that the court would definitely take up the Harvard case and also the North Carolina case because they raise similar issues.”

In the Harvard case, a group of Asian American plaintiffs called Students for Fair Admissions sued the University over race-conscious admissions. But the Harvard case decisions in 2019 by Judge Allison Burroughs and 2020 by the U.S. Court of Appeals for the First Circuit both agreed with the University. Dr. Julie Park, associate professor of student affairs at the University of Maryland’s College of Education, served as a consulting expert in the case on the side of Harvard.

“It’s important to know that the lower courts have affirmed both institutions—and for Harvard, that affirmation happened twice, at the district level and the circuit court—that they did not see levels of intentional racial discrimination,” said Park, who studies affirmative action in college admissions. 

Sarah Wake, a lawyer at McGuireWoods who represents universities on policy issues and previously was the associate general counsel at Northwestern University, added that the prior rulings on the Harvard and UNC cases make the Supreme Court’s decision to hear both again stand out.