The Supreme Court Has Heard Oral Arguments in the Affirmative Action Case. What’s Next?
The Harvard Crimson
November 17, 2022
By Rahem D. Hamid and Nia L. Orakwue, Crimson Staff Writers
Following oral arguments last month, the Supreme Court is set to deliver a decision in the anti-affirmative action lawsuit against Harvard and the University of North Carolina next summer.
Race-conscious college admissions is likely on the chopping block of the court’s conservative majority and some experts expect universities to have begun planning for a post-affirmative action world.
Students for Fair Admissions is led by activist Edward J. Blum, who has a long history of opposing race-conscious policies. The group first sued Harvard in 2014, alleging that the College’s race-conscious admissions program violates Title VI of the Civil Rights Act of 1964, which prevents institutions that receive federal funding from discriminating “on the grounds of race, color, or national origin.”
Following two lower-court rulings in Harvard’s favor, SFFA petitioned the Supreme Court to take up the case, which it did in January.
Experts have long expected it to overturn the precedent it affirmed in the 2003 case Grutter v. Bollinger.
Richard H. Sander ’78, a law professor at the University of California, Los Angeles, said he expects the court’s ruling to overturn Grutter on grounds of Title VI or the 14th Amendment or get thrown back to the lower courts.
Despite the uncertainty about how exactly the justices will rule, Sander said he thinks there will be an increase in academic discourse about possible race-neutral alternatives to achieve racial diversity in higher education while the schools await the court’s ruling.
When the Supreme Court last debated affirmative action – after Blum sued the University of Texas at Austin for using race in admissions in 2014 – Sander said higher education officials had begun planning for a decision that declares race-based admissions unconstitutional.
“There was a lot of engagement by university leaders and other people in education about post-affirmative action strategies,” he said. “I went to a couple of conferences in 2014, where there were a dozen academics or thinkers like myself, and then a couple of dozen university presidents. And the topic was basically, ‘what next?’”
“I think those sorts of discussions are starting up again,” he added.
In the event that the court does overturn its precedent, Sander said, the exact changes to college admissions policies on specific issues – like writing about race in college essays – will be decided by the lower courts and schools.
Steven R. Goodman, an educational consultant and admissions strategist, forecasted declines in the number of Black and Latinx students on college campuses if the court rules in favor of SFFA. He specifically cited California as an example – which banned the use of race in admissions for its public universities in 1996.
“I think we’ll see drops,” Goodman said. “Will they be as significant as the drops in California? No, but there’ll be significant drops.”
Harvard College spokesperson Rachael Dane declined to comment on any ongoing preparations in the event of a ruling against the University.