In 2003, the Supreme Court ruled in Grutter v. Bollinger that universities may consider race in their admissions processes as part of their efforts to achieve diversity on campus. On Oct. 31, the justices will hear oral arguments in a pair of cases asking them to overturn Grutter and outlaw race-based affirmative action in higher education altogether.

The challengers urge the justices to rule that the Constitution and federal civil rights laws bar any consideration of race in college admissions. But the universities at the center of the dispute, as well as their supporters, counter that overruling Grutter would have sweeping effects well beyond university admissions, affecting everything from the performance of U.S. businesses to the practice of medicine in an increasingly diverse society.

Both of the lawsuits were filed in federal court in 2014 by a group called Students for Fair Admissions, which describes itself as “dedicated to defending the right to racial equality in college admissions.” The group was created that same year by Edward Blum, a stockbroker and conservative activist who, though not a lawyer, has backed other prominent lawsuits challenging the consideration of race in undergraduate admissions as well as a challenge to the constitutionality of the Voting Rights Act. SFFA says it has more than 20,000 members.

The two universities being challenged are Harvard University and the University of North Carolina. But according to Harvard’s brief, over 40% of all U.S. universities — and 60% of selective universities — consider race in some form during their admissions process. The cases being heard on Monday could affect all of them.

Two cases, two paths to the Supreme Court

In its lawsuit against Harvard, SFFA alleged that the university discriminates against Asian American applicants, arguing that they are less likely to be admitted than similarly qualified white, Black, or Hispanic applicants. Harvard receives over 35,000 applications for 1,600 spaces in its freshman class.

In 2015, Harvard asked the district court to put the proceedings on hold until the Supreme Court issued its decision in a challenge to the consideration of race in the admissions process at the University of Texas at Austin. In that case, also backed by Blum, a divided Supreme Court upheld the university’s use of race, but the justices suggested that the university’s policy was unique, and that other schools would have to pass a high bar if they wanted to continue to use race-conscious admissions programs.

Two years after that ruling, the Harvard case went to trial before a federal district judge in Massachusetts. After a 15-day trial, Judge Allison Burroughs issued a 130-page opinion in which she concluded that Harvard had not violated Title VI of the Civil Rights Act, which bars entities that receive federal funding from discriminating based on race. Harvard, Burroughs ruled, did not intentionally discriminate against Asian Americans, and the university considered race because it was necessary to obtain the benefits of a diverse student body.

The U.S. Court of Appeals for the 1st Circuit upheld Burroughs’ ruling. It agreed that under Supreme Court precedent, Harvard’s consideration of race in its admissions program does not violate Title VI. It noted that the university had tried other strategies to increase enrollment by Black and Latino students – such as increasing financial aid – but it concluded that those methods were not as effective.

SFFA came to the Supreme Court in February 2021, asking the justices to review the 1st Circuit’s ruling.

At the same time, the second case, challenging the admissions program at the University of North Carolina, was winding its way through the courts. In that case, SFFA contended that UNC discriminates against its members by considering race in its admissions process when the university does not need to do so to assemble a diverse student body. The group argued that the admissions process violates the 14th Amendment’s equal protection clause, which bars racial discrimination by government entities, including public universities like UNC.

After an eight-day trial in November 2020, a federal district judge in North Carolina agreed with the university that the school’s consideration of race does not violate the Constitution. The university only uses race as a “plus” factor in its admissions process, Judge Loretta Biggs observed, and race ultimately affects the outcome for only a small percentage of minority students. Moreover, Biggs added, UNC does not have any other practical alternatives that would allow it to create a diverse student body without considering race.

SFFA came to the Supreme Court in November 2021, asking the justices to take the relatively unusual step of granting review in the North Carolina case without waiting for the U.S. Court of Appeals for the 4th Circuit to weigh in. The justices agreed in January of this year to take up both cases.

Zealous arguments over precedent, practical consequences, and racial discrimination

In its brief on the merits, SFFA stresses that both Harvard and North Carolina take race into account at “every stage of the admissions process.” But the Constitution, the group argues, is color-blind, and the court’s decision in Brown v. Board of Education, the landmark 1954 ruling striking down racial segregation in public schools, made clear that race should not play any role in school admissions. And although the 14th Amendment does not apply to private universities like Harvard, the Supreme Court has ruled that the legal test under Title VI coincides with the test under the 14th Amendment – that is, Title VI prohibits racial classifications that would violate the 14th Amendment, which guarantees citizens “equal protection of the laws,” if applied by the government.

All three of the factors that the court normally considers in deciding whether to overrule its prior cases are present here, SFFA writes. First, the group asserts, Grutter is “egregiously wrong.” Not only is it inconsistent with Brown, SFFA reasons, but the court in Grutter did not have any evidence that having a racially diverse student body will create benefits such as “a diversity of backgrounds, experiences, and viewpoints.” Grutter also “rests on a lie,” SFFA says: The court’s decision cited the Harvard admissions program as an example of how to use race, but the role of race in the Harvard program is much more pervasive than previously disclosed.

Second, SFFA tells the justices, Grutter has led to “significant negative consequences.” The test that it outlines is so vague, SFFA argues, that the only way to determine whether a university can meet it is through litigation. The Harvard and UNC cases, it notes, “alone have required more than seven years of expensive, cumbersome litigation.” Grutter also endorses different treatment for students of different races – leading, SFFA contends, to an “obsession with race” and segregation on campus.

Third, SFFA stresses, overruling Grutter would not upset any expectations that Harvard and UNC might have about their ability to consider race. Universities cannot and should not rely on Grutter, SFFA suggests, “because no one has a legitimate interest in treating people differently based on skin color.” This is particularly true, SFFA continues, when even Justice Sandra Day O’Connor’s opinion for the court in Grutter posited that “25 years from now, the use of racial preferences will no longer be necessary to further” a university’s interest in having a diverse student body.

Harvard and UNC urge the justices to leave Grutter and the court’s other decisions involving the consideration of race in university admissions in place, stressing that the cases are correct and there is therefore no need to overrule them. In Grutter, Harvard contends, the justices outlined several different reasons why universities have a strong interest in having a diverse student body – “all of which remain correct.” Education, Harvard writes, is key “to maintaining the fabric of society.” Having a diverse student body provides substantial benefits for students, Harvard adds, and “better prepares” them for “an increasingly diverse workforce and society.” As a result, Harvard concludes, many universities believe that diversity is “indispensable” to their educational missions.

Contrary to SFFA’s suggestion that the Constitution and Title VI bar any consideration of race in admissions, Harvard and UNC insist that their admissions policies are consistent with the text and history of the 14th Amendment. The amendment was intended to compensate for the “gross injustice and hardship” that Blacks encountered after the Civil War, the universities stress. To that end, the universities say, the drafters of the 14th Amendment rejected a draft that would have barred any differential treatment based on race, because they understood that race could be considered “to advance overriding governmental objectives.” Indeed, they note, in the years immediately following the ratification of the 14th Amendment, both state and federal governments adopted “race-conscious measures to promote African Americans’ equal participation in society.”

The Biden administration, which filed a “friend of the court” brief supporting the universities, pushes back sharply against SFFA’s suggestion that the universities’ consideration of race as one factor in their admissions programs is inconsistent with the court’s decision in Brown. SFFA’s “persistent attempts to equate this case with Brown trivialize the grievous legal and moral wrongs of segregation,” U.S. Solicitor General Elizabeth Prelogar writes.

A group of UNC students and alumni from historically underrepresented groups, who intervened in the UNC case to help defend the school’s admissions policy, agrees that it is consistent with Brown. In that case, the students contend, the justices “recognized the importance of racial integration and cross-racial dialogue in a learning environment and in building the foundation for an educated citizenry.”

The universities reject SFFA’s contention that Grutter must be reversed because of its negative impact. To the contrary, they contend, overruling Grutter would lead to “substantial disruption.” Many universities, especially selective ones, have structured their curricula and programming around their decision to use a holistic admissions process that considers race as one factor in their efforts to obtain the benefits of a diverse student body. Striking down Grutter, UNC adds, would open the door to “a flood of future litigation, including over alternatives that universities might adopt in its wake.”

The Biden administration notes that other institutions have also relied on the court’s decision in Grutter. For example, it tells the justices, because senior military officials “have learned through hard experience that the effectiveness of our military depends on a diverse officer corps that is ready to lead an increasingly diverse fighting force,” the U.S. military relies on Grutter in the admissions process for the service academies and “in recruiting officers from civilian universities like Harvard.”

“Other federal agencies,” the administration continues, “likewise depend on diversity in our Nation’s universities to recruit highly qualified graduates from all segments of society who are equipped to succeed in diverse environments.”

Even if the court does not ultimately overrule Grutter, SFFA contends, it should still rule that the Harvard and UNC admissions programs are invalid because they do not comply with Grutter. The trials in both cases, SFFA says, show that the universities do not pay any attention to Grutter’s commands. Both schools, the group writes, “award mammoth preferences to African Americans and Hispanics” and have no plans to stop. Until SFFA filed its lawsuits, the group alleges, neither school had tried to come up with race-neutral alternatives that would allow them to assemble a diverse student body; since then, the schools have since rejected race-neutral alternatives “that would cause the slightest change in their student body.”

Harvard and UNC dismiss SFFA’s contention that they rely too heavily on race in their admissions process. To the contrary, they note, the lower courts concluded that both schools use race as only one factor in a holistic review that also considers, as UNC points out, where applicants live, whether they have served in the military, and their socioeconomic backgrounds.

The UNC students add that the school still needs to consider race because of its long history of discrimination against Black applicants, who as of 2016 continued to be significantly underrepresented at UNC compared to the state’s overall population of Black residents. Students, alumni, and faculty can all confirm that the UNC community benefits from the university’s ability to consider race as one factor in its admissions process, the students tell the justices. For example, they note, one white alumnus who had served in the military “testified that interacting with peers of different racial and ethnic background” was among his “most rewarding experiences” at UNC, while a political-science professor indicated that “classroom discussion and learning in my courses is richer and deeper when we have a diverse group of students in the classroom.”

Harvard, UNC, and the students also emphasize that both schools have tried to use race-neutral methods, such as outreach programs and providing generous financial aid, to assemble a diverse class. But the lower courts in both cases concluded that none of these methods will work as well right now to create a diverse student body.

It has been nearly 20 years since the court’s decision in Grutter. Since then, the court has moved substantially to the right. None of the five justices in the majority remain on the court, and two of them – O’Connor and Justice Ruth Bader Ginsburg – have been replaced by significantly more conservative successors, Justices Samuel Alito and Amy Coney Barrett. And although Justice Ketanji Brown Jackson, who succeeded Justice Stephen Breyer, likely shares many of Breyer’s views, she will not participate in the Harvard case because she recently finished a six-year stint on the school’s board of overseers. As a result, the universities and their supporters are wary of the court’s decision to take up the two cases. With nearly three hours of oral argument scheduled for next week, they may soon know much more about how the justices are likely to rule.

This post is also published on SCOTUSblog.