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US top court could remove race from admission criteria in universities: what is the case and issues involved

The Supreme Court of the United States (SCOTUS) on Monday (October 31) appeared ready to strike down as unlawful the race-conscious admissions programmes at Harvard University and the University of North Carolina (UNC), media reports said.

The New York Times based its assessment on the tone and content of “over five hours of vigorous and sometimes testy arguments” in court. The Guardian noted the “hours of debate over difficult questions of race” and concluded that the “survival of affirmative action in higher education” in the US “appeared to be in serious trouble”.

Politico, which had scooped the likely overturning of Roe v Wade in early May this year, about six weeks ahead of the order, reported that a “majority of the justices [had] sounded inclined to further restrict the use of race in college admissions during arguments in two high profile cases at the Supreme Court”.

Should the court do away with affirmative action in these two cases, it would overrule decades of precedents, and put in jeopardy similar policies in colleges and universities around the US, with the likely effect of reducing the representation of Black and Latino students and boosting that of Whites and Asians.

How did this matter come before the SCOTUS?

On January 24 this year, hearing a petition filed by the Virginia-based forum Students for Fair Admissions (SFA), the court agreed to look into the question of whether race should be a criterion in student admissions at Harvard and the UNC, setting the stage for a review of the policy of “race-conscious” admissions on American campuses.

The policies of both universities had been upheld by lower courts earlier in separate orders. (Unlike the Supreme Court in India, the SCOTUS mostly hears appeals from lower courts; its original jurisdiction — that is, when it is the first court to hear a particular case — is limited to hearing disputes between states or among ambassadors and other high officials.)

In 2018, a district court in Boston had ruled in Harvard’s favour, and the decision was upheld by an appeals court in 2020. In February 2021, the SFA moved the Supreme Court.

In the UNC case, the university obtained a favourable verdict in a lower court in 2021, and the SFA petitioned the SCOTUS to hear both cases together.

The Donald Trump Administration had backed the SFA in the lower courts in the Harvard case. The Joe Biden administration, however, backed the university.

While the court had initially consolidated the two cases, they were separated after Justice Ketanji Brown Jackson joined the bench in June, and recused herself from the Harvard case because she had earlier served on one of the governing bodies of the university.

And who exactly are the SFA?

It is an advocacy that describes itself as a “nonprofit membership group of over “20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional”.

The SFA says on its website that its “mission is to support and participate in litigation that will restore the original principles of our nation’s civil rights movement: A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university.”

The president of the group is a 70-year-old conservative legal strategist named Edward Blum. In a profile published in 2017, The New York Times described Blum as a “one-man legal factory with a growing record of finding plaintiffs who match his causes, winning big victories and trying above all to erase racial preferences from American life”.

Blum, The NYT article said, has “orchestrated more than two dozen lawsuits challenging affirmative action practices and voting rights laws across the country”.

Blum was the litigant against Harvard in the lawsuit that argued that the university’s affirmative action policies amounted to an illegal quota system. He was also behind the legal challenges in the Supreme Court against the consideration of race in admissions at the University of Texas, and to parts of the Voting Rights Act of 1965, an important civil rights law. He lost the first case, but won the second, according to The NYT report.

Do all colleges or universities in the US consider race as a factor during admissions?

No, all don’t. Nine states — Oklahoma, Idaho, Washington, Michigan, Nebraska, Arizona, New Hampshire, Florida and California — have outlawed affirmative action based on race.

There are no official estimates on how many colleges or universities consider race during admissions. But unofficial estimates collated by nonprofits such as College Board say only a small fraction of the approximately 6,000 colleges in America do so. That said, there are some very high-profile names on that list, which bring to it greater attention than the numbers alone would.

How has the US Supreme Court looked at affirmative action policies in the past?

This matter had been challenged several times in the past, and from the 1970s onward, the court has adjudicated several times on matters related to race in admissions.

In the 1978 ‘Regents of the University of California vs Alan Bakke’ case, the US Supreme Court held that the university could not reserve seats for Blacks, even though it could use race as one of the factors during admission.

Recent important cases of this kind include ‘Grutter vs Bollinger’ (2003) involving the University of Michigan Law School, and ‘Fisher vs University of Texas’ (2016).

THE 2003 RULING: A white resident of Michigan named Barbara Grutter sued saying she had lost out on studying at the University of Michigan because of the university’s policy of using race as a criterion for admission.

The university argued that it was promoting racial diversity; Grutter claimed a violation of her right under the 14th Amendment, under which no person can be deprived of life, liberty, or property without due process of law, and no one can be denied equal protection under the law.

In a 5-4 verdict, the court ruled in favour of the university, saying the “Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

However, the majority opinion added that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” leaving a window open for reviews in the future.

THE 2016 RULING: A White woman named Abigail Fisher, who had been denied admission to the University of Texas at Austin, sued in 2008, also claiming a violation of her 14th Amendment rights. The university said its policy was entirely legal.

The lower court ruled in UT-Austin’s favour, which was affirmed by a US court of appeals. But in 2013, the Supreme Court vacated the ruling of the lower court and asked it to examine the case again.

After the lower court once again ruled in the university’s favour, the Supreme Court once again took up the matter based on a fresh plea from Fisher, and ultimately upheld UT-Austin’s policy in a 4-3 judgment.

In the majority opinion, Justice Anthony Kennedy observed that though a college must “continually reassess” its need for race-conscious review, UT-Austin appears to have done it with care. The dissenting opinion, which was joined by Chief Justice John Roberts, rejected the assertion that the policy promotes diversity, saying UT-Austin had “failed to define that interest with any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other particular interest”.

What is the upshot, for the US and for other countries?

While the SCOTUS has leaned towards upholding affirmative action, its decisions have been based on narrow majorities on the bench. Also, individual justices have made sharp observations making it clear that they have specific reservations and support the policy only conditionally.

In the circumstances, a change in the court’s general position on affirmative action in university admissions has been anticipated ever since appointments made by President Donald Trump led to a clear conservative majority on the bench. The removal of the long established constitutional right to abortion in June was seen as an indication of more bold judgments on traditionally divisive issues.

The broad argument in almost all cases of this kind over the years has been that the policy discriminates against non-Blacks — an argument that is similar to the one made by individuals and groups that oppose caste-based reservations in India. In practical terms, the judgment could have an impact on Indian students seeking admission to American colleges and universities.

The decisions in the two cases — ‘Students for Fair Admissions v. Harvard’, and ‘Students for Fair Admissions v. University of North Carolina’ — will probably land in June, The NYT report said.

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