Justices Poised Again to Upset Precedent

         With the Supreme Court’s new term set to open in three weeks, the Republican-packed bench may be on the verge of overruling another important precedent just as the justices did last year in overruling the landmark abortion rights decision, Roe v. Wade.

            The Court gets its first clear shot at mocking “equal justice under law” this term when the justices will hear oral arguments in companion cases challenging affirmative action admissions policies at Harvard University and the University of North Carolina. The two cases, brought in the name of the self-styled advocacy group Students for Fair Admissions (SFFA), are the handiwork of Edward Blum, a litigation-crazy opponent of affirmative action who has tilted at this windmill for thirty years without success so far.

            Two lower federal courts reviewed Harvard’s admissions policies and upheld the policies as conforming to the applicable precedent, Grutter v. Bollinger (2003), which allows colleges and universities to consider an applicant’s race or ethnicity as part of a “holistic evaluation” of the applicant’s qualifications for admission. A federal district court similarly upheld UNC’s admissions policies, based on Grutter.

            SFFA is asking the Court in both cases to overrule Grutter, despite the stare decisis presumption in favor of reaffirming past decisions. Here is SFFA’s framing of the question in the Harvard case for the Court to consider: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

            The federal district court in the Harvard case and the U.S. Court of Appeals for the First Circuit both found that Harvard was not discriminating against Asian American applicants. In its 104-page opinion, the First Circuit concluded that Harvard does not engage in racial balancing in its admissions process. “Harvard's use of race in admissions is contextual and it does not consider race exclusively,” the three-judge panel wrote. “Next, Harvard's process does not weigh race so heavily that it becomes mechanical and decisive in practice. Harvard's undergraduate admissions program considers race as part of a holistic review process.”

SFFA brought the UNC case to the Supreme Court without waiting for an appeal to the Fourth Circuit. The justices granted certiorari before judgment on January 24, 2022, in order to hear the UNC case along with the Harvard case. As it happens, however, the Court’s new justice, Ketanji Brown Jackson, is recused from the Harvard case because of her past affiliations with the school; and, for that reason, the justices decided to separate the two cases for oral arguments. The Harvard case is now set for oral arguments on Monday, October 31; with time granted for the solicitor general to argue in support of Harvard’s position.  The UNC case will be heard separately on a later date.

            Blum’s chances for overruling Grutter turn solely on the changes in the Court’s personnel in the past two decades thanks to Republican appointees narrowly confirmed by a Senate with a bare Republican majority. The five justices who joined the Court’s majority opinion in 2003 are no longer on the Court; two of those in the majority have been succeeded by Republican appointees: Alito succeeded O’Connor, who wrote the majority opinion; and Barrett succeeded Ginsburg after her death.

            The overwhelming weight of amicus briefs filed with the Court in both cases favors reaffirming Grutter and rejecting SFFA’s legal challenges. In its brief in the Harvard case, for example, the Biden administration states emphatically that “the educational benefits of diversity remain of compelling interest to the United States.”

            In its briefs in the two cases, SFFA only barely addresses the specific factors traditionally looked to in considering whether to overrule a prior decision. Grutter, SFFA argues, was and is “grievously wrong.” The group fails to answer the arguments from the two schools and from the various groups that filed supporting briefs that overruling Grutter would undermine the reliance interests that various colleges and universities have in having adopted admissions policies to conform with the Court’s guidelines.

            The legal groups supporting Harvard and UNC include such well-established organizations as the American Bar Association, the American Civil Liberties Union, and the NAACP Legal Defense Fund. In its brief in the UNC case, the Legal Defense Fund noted that  UNC did not admit black applicants until 1951 and that despite the school’s current race-conscious policies, black men comprised only 95 members of the 4,500-member incoming class in 2021. Overruling Grutter, the brief warned, would mean that “very few Black students would have an opportunity to attend the state’s flagship taxpayer-funded university.”

            In another of the amicus briefs, a brief filed on behalf of twenty-five Harvard student and alumni organizations and written by LDF lawyers, the LDF lawyers argued that “race-conscious admissions are necessary because, given opportunity gaps, traditional indicia of merit underpredict the potential of many applicants of color.”

            “Eliminating Race-Conscious Admissions Would Decimate the Numbers of Certain
Students of Color, Especially Black Students, at Harvard,” the brief warned.

            As in the LDF brief in the UNC case, the lawyers noted in this brief what they called Harvard’s “near-categorical exclusion of Black, Latinx, Native/Indigenous, Asian American,
and other students of color” until recent times. The brief also notes that nearly seventy years after Brown v. Board, racial segregation persists in K-12 public education. Specifically, 75 percent of black K-12 students attend racially segregated schools and 80 percent of Latinx K-12 students attend racially segregated schools. These students of color are 20 percent more likely than white students to attend a school with inexperienced or uncertified teaching staffs.

            The persistence of racial inequality in public K-12 education counsels strongly against SFFA’s formalistic arguments for prohibiting any consideration of race in college and university admissions.  The justices would be well advised to take into full account the wisdom of the great justice Oliver Wendell Holmes Jr. “The life of the law has not been logic,’’ Holmes explained, “it has been experience.”