UNC Takes Center Stage in Supreme Court's Affirmative Action Case

UNC, along with Harvard, is at the center of a new case which seeks to overturn the precedent that allows universities to use affirmative action policies in their admissions processes. Source: Johnny Andrews/UNC-Chapel Hill

“The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Supreme Court Justice Sandra Day O’Connor made this prediction 19 years ago in Grutter v. Bollinger (2003), in which the Court reaffirmed the precedent established in Regents of the University of California v. Bakke (1978), which holds that a university may use race as a factor in a holistic approach to the university admissions process in the pursuit of constructing a diverse class. And, as recently as 2016, the Supreme Court reaffirmed this precedent regarding standards for legal affirmative action programs in Fisher v. University of Texas. Yet, although it will only be 20 years since O’Connor’s prediction, this precedent for legal affirmative action will be in peril next summer when the Supreme Court — which is now much more conservative-leaning than in 2016 — is expected to release its opinions on the two recently-addressed cases concerning university admissions processes at the University of North Carolina at Chapel Hill and Harvard.

The plaintiff in both cases, which have been combined, is the same group: Students for Fair Admissions, a non-profit anti-affirmative action group with more than 20,000 members. The organization has alleged that Havard unconstitutionally discriminates against Asian Americans and that UNC discriminates against Asian Americans and whites in favor of Hispanic and African American applicants with their admissions processes. To support this claim, SFFA has used an expert report produced by Duke University professor Peter S. Arcidiacono, which demonstrates how simply changing the race of an Asian applicant to Hispanic or African American at UNC skyrockets their chances of admittance from 25% to 77% and 95%, respectively, holding all other factors equal. This evidence supports SFFA’s claim that “race is not a ‘factor of a factor of a factor’; it is an anvil on the scale that dominates the entire process.” SFFA claims that these programs violate the 14th Amendment’s Equal Protection Clause in the case of UNC, and Title VI of the Civil Rights Act of 1964 in the case of Havard, which unequivocally bans any government or institution that receives government funding from distinguishing service based on race. Even if these arguments fall on deaf ears, SFFA has also provided numerous race-neutral alternatives that would increase diversity and void the need for the government to make racial distinctions. Such alternatives include, but are not limited to, similar approaches to those that schools use in states with bans on affirmative action, such as the consideration of geographic percentages and placing higher emphasis on socioeconomic status. Additionally, some programs automatically admit the top students out of each high school in the state. Hence, to correct for the injustice they see in affirmative action, SFFA is asking the Court to “overrule Grutter and outlaw race-based admissions.”

Despite these arguments in favor of overturning the Grutter precedent, the universities in both cases have prevailed in the lower courts, which have ruled in favor of preserving the schools’ admissions programs. To accomplish such a feat, UNC, for its part, has stoutly defended its processes. In response to the allegations, the University noted that they do not use “quotas or formulas, and [they] do not discriminate against any applicant or group,” or require applicants to “disclose their race or ethnicity.” This language indicates that the school’s admissions have sought to carefully tailor their program to adhere to the Grutter precedent, which allows for the use of race as just one small factor in a holistic approach, rather than as a part of an unconstitutional quota system, which has been illegal since Regents v. Bakke (1978). Havard has echoed these same arguments while also adding that “not one page of 100,000 pages of internal Harvard documents reflects any systematic effort to discriminate against Asian-Americans.” Moreover, both universities continue to emphasize the immense benefits — for students and faculty of all races — that are derived from a diverse class, a point which they hope the Supreme Court will continue to recognize as a compelling justification for considering race in the admissions process.

The last validation of affirmative action undertaken by the Supreme Court, Fisher v. Texas (2016), was decided on a slim 4-3 majority. Significantly, this majority included two justices, Ruth Bader Ginsburg and Anthony Kennedy, who have since been replaced by conservative Trump appointees, Brett Kavanaugh and Amy Coney Barrett. With these replacements, the Court is now a 6-3 conservative-liberal split, which is consequential as conservatives are more likely to find affirmative action unconstitutional. It is also a disturbing sign that the Court is taking a case for which the precedent involved was affirmed just six years ago. Yet, while the Court’s decision is still uncertain, Americans’ views regarding using race as a factor in college admissions are not, as 73% of respondents in a 2019 Pew Research poll stated their opposition to the practice. If affirmative action is indeed banned, studies have indicated that there will be a dip in representation for African American and Hispanic students, whose campus representation is already below their share of the general population. These studies, however, only measure racial diversity, which, as SFFA has argued, is not a perfect proxy for the diverse viewpoints sought on university campuses. Ultimately, the country must wait for the resolution, as the Supreme Court is expected to hear this case next term and release a decision in the spring or summer of 2023.