The Supreme Court is in the midst of hearing two cases which could enable them to roll back affirmative action colleges and universities use for admissions.
Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina both ask the Supreme Court to overrule Grutter v. Bollinger, in which a divided Supreme Court ruled that the University of Michigan Law School could consider race in its admissions process.
But at the time of the Grutter decision in 2003, Justice Sandra Day O’Connor, who held with the majority opinion, stated, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”
Students for Fair Admissions (SFFA) argues that Harvard has violated Title VI of the Civil Rights Act by discriminating based on race while still obtaining federal funding. SFFA challenges the University of North Carolina by accusing it of violating the 14th Amendment’s equal protection clause by using race in its admissions policy when the university already has a diverse student body.
Patrick Strawbridge, representing SSFA, cited Brown v. Board of Education, which struck down racial segregation in public schools in 1954, contending “racial classifications are wrong.” He asked the Court to not only overrule Grutter, but also Regents of the University of California v. Bakke, which upheld using race as a yardstick in 1978.
The conservative justices on the Court made some pointed remarks this week hinting they might lean toward ending affirmative action policies used in college admissions.
Justice Samuel Alito asked bluntly when a court was supposed to determine the benefits of diversity have been achieved; Justice Amy Coney Barrett echoed, “When does it end? When is your sunset? When will you know?”
Barrett also pointed out that decades have passed since Bakke, continuing of reaching diversity “What if it continues to be difficult in another 25 years?”
Even Chief Justice John Roberts, who often votes with the Court’s leftist justices, reacted when U.S. Solicitor General Elizabeth Prelogar argued that “there is an endpoint in sight,” telling her that her contention “was very different from what Justice O’Connor said” in Grutter, adding, “She said race-conscious admissions programs must be limited in time. That was a requirement,” as Amy Howe of ScotusBlog noted.
Justice Brett Kavanaugh chimed in by noting that since Grutter, nine states have barred public universities from using race in the admissions process. “Those examples now show with greater confidence that universities can use race-neutral programs that “produce significant numbers of minority students on campus,” he declared.
