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Is Affirmative Action Next For SCOTUS? Here’s How It Could Happen

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Laurel Duggan
May 31, 2022 7:14 PM ET
  • The Supreme Court is considering a case challenging the affirmative action practices of Harvard and the University of North Carolina, and justices could potentially strike down the practice.
  • Legal experts told The Daily Caller News Foundation justices could end affirmative action by deeming it unconstitutional or by applying existing civil rights law. 
  • “The Constitution demands that the government treat individuals as individuals and not as members of arbitrary racial groups,” one attorney told TheDCNF. 

The Supreme Court is currently considering a case challenging the consideration of race in college admissions, and amicus briefs filed by plaintiffs reveal how the court could rule.

The court will decide whether admissions programs that consider race at Harvard University and the University of North Carolina (UNC) are lawful in Students for Fair Admissions (SFFA) v. Harvard, in which the plaintiffs allege Harvard’s admissions racially discriminate against Asian Americans, during its 2022-2023 term. Justices could potentially overturn court precedent by ruling that such affirmative action programs violate the Fourteenth Amendment or federal civil rights law.

Dan Morenoff, counsel of record in the American Civil Rights Project’s amicus brief, explained arguments justices could use to strike down affirmative action programs.

“[The court] could rule that both UNC and Harvard have violated Title VI of the Civil Rights Act of 1964 through their race-based admissions schemes, either because of the plain meaning of the statute or because the Supreme Court’s case law, for decades, has said that Title VI bars the same racial discrimination by all federal funding recipients that the 14th Amendment bars state governments and their subdivisions from pursuing,” Morenoff told The Daily Caller News Foundation.

The Constitutional Angle

Several legal experts said the court should rule affirmative action unconstitutional under the Fourteenth Amendment, which grants equal protection under the law regardless of race.

This would mean striking down the admissions programs of Harvard and UNC as unconstitutional because they discriminate without narrowly tailoring their policies to achieve a “compelling interest”; the policies fail what is known as the “strict scrutiny” test, according to Morenoff.

“In no other circumstance besides higher education does the Supreme Court tolerate this sort of overt racial discrimination,” Daniel Suhr, managing attorney at the Liberty Justice Center and counsel of record in an amicus brief in support of SFFA, told TheDCNF.

“This case is the right time to restore the promise of the Fourteenth Amendment and end racial discrimination,” he said.

Wen Fa, the counsel of record in Pacific Legal Foundation’s amicus brief, also believed the court could strike down affirmative action on constitutional grounds.

“The Constitution demands that the government treat individuals as individuals and not as members of arbitrary racial groups. Government increases opportunity by tearing down government-imposed barriers to achievement, not by doling out preferences on the basis of race,” Fa told TheDCNF.

Grutter’s Shortcomings

The Supreme Court ruled on affirmative action previously in Grutter v. Bollinger, a 2003 decision which held that universities’ use of racial preferences in admissions did not violate the Fourteenth Amendment or the Civil Rights Act. Some attorneys argued flaws with the case justified overturning it.

“Race preferences have to be justified by a compelling interest. In Grutter, the Court decided that the compelling interest was promotion of the First Amendment: the theory was that ‘diversity’ would promote a more ‘robust exchange of ideas’ on campus,” Bradley Benbrook, counsel of record in the amicus brief submitted by Speech First, told TheDCNF. “The Court didn’t address the many ways this theory conflicts with other First Amendment principles.”

“But more important, experience has shown that colleges have massively restricted, rather than enhanced, free speech in the name of ‘diversity.’ Reality has proved the theory was wrong, which is a classic basis for overruling a prior decision,” he said.

Oklahoma Attorney General John O’Connor and 18 other Republican state attorneys general joined an amicus brief urging justices to overturn Grutter. They argued that states without affirmative action still have diverse student populations, and that affirmative action discriminated against Asian students.

“Nine states have resisted the temptations of race-based admissions and, often by popular referendum, legally barred universities in their state from engaging in such discrimination. Data from these states … undermines Grutter’s assumption that diversity cannot be achieved by any other means or only by alternatives that come at an intolerable educational cost,” the amicus brief read.

An ‘Elegant Approach’: Civil Rights Law

One legal expert laid out simpler solution that wouldn’t require justices to mull over the constitutional questions associated with affirmative action.

Jonathan F. Mitchell, author of the Texas Heartbeat Act which banned most abortions at around 6 weeks and has yet to be struck down due to its unique civil enforcement mechanism, coauthored a brief with Gene P. Hamilton of America First Legal Foundation on the organization’s behalf. The brief argued that the Supreme Court could avoid debating the constitutional question entirely by simply calling for recipients of government funds to comply with Title VI of the Civil Rights Act, which “prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.”

Affirmative action programs such as those used by Harvard and UNC discriminate in violation of Title VI, the brief argued; the court could simply rule that those programs are illegal under existing law.

“This brief supplies conservative justices with what they may well deem an enticing, elegant approach to dismantling affirmative action,” said Justin Driver, a law professor at Yale, according to The New York Times.

By choosing this avenue, justices would establish that existing civil rights law prohibits all racial discrimination by federal funding recipients and would block “racial gamesmanship” in college admissions along with numerous other discriminatory programs, Morenoff told DCNF.

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