What’s at stake as the Supreme Court considers banning race in college admissions: ‘Basic fairness’

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The Supreme Court is hearing oral arguments on Monday in two cases that could determine whether colleges can consider race in their college admissions process, a decision that could drastically affect how colleges admit students, and impact racial diversity far beyond higher education. 

The cases deal with the admissions policies of Harvard and the University of North Carolina at Chapel Hill. Students for Fair Admissions (SFFA) sued both schools, alleging their policies, which consider race as a factor in admissions, discriminate against Asian American applicants. 

SFFA first sued Harvard in 2014, and is now asking the Supreme Court to overturn its 2003 landmark decision Grutter v. Bollinger, which permitted race to be considered as one factor in college admissions because it believed student body diversity was “a compelling state interest.”

In writing the opinion in the Grutter case, Justice Sandra Day O’Connor wrote that “race-conscious admissions policies must be limited in time,” and added that “we expect that 25 years from now, the use of racial preferences will no longer be necessary.”


The Supreme Court will hear two cases on affirmative action. 
(AP Photo/J. Scott Applewhite, File)

Now, 19 years later, the Supreme Court is revisiting whether racial preferences are, in fact, still necessary. 

“The Supreme Court is going to once and for all be answering the question of whether our nation’s college and universities can consider race in the admissions process,” Kimberly Herman, general counsel for the Southeastern Legal Foundation, told Fox News Digital. 

It is “one of the most consequential supreme court cases to ever be heard in higher education,” Danielle Holley, Dean of Howard University Law School told Fox News Digital. “For selective admission universities, it would mean that if the Supreme Court finds against Harvard or UNC, those universities could no longer consider race in any way in admissions.” 

That outcome would have significant effects on diversity on college campuses, Tiffany Atkins, a law professor at Elon Law School, told Fox News Digital. 

“From my perspective as a law professor and a lawyer, this is important because it affects the students that I teach, the conversations that we have, the richness of the conversation in the classroom,” Atkins said.  

The consequences of the Supreme Court ruling in favor of SFFA would be far reaching, Atkins added, potentially affecting the pipeline for professions like doctors and lawyers. 

Yvette Pappoe, an assistant law professor at the University of D.C., said eliminating race-conscious admissions would have “devastating consequences on people of color, minorities generally,” and strongly advocated for them to continue. 

“We absolutely still need race conscious admissions programs. The whole point of affirmative action was not to reward historically advantaged groups. The whole point was to remedy past discrimination, whether intentional or not, and that has not been remedied, whether we like to admit it or not,” Pappoe said. 


“Banning such programs will harm students, it will harm schools, it will harm society in interrelated ways. It will not only deepen the existing racial disparities in higher education and other social institutions, it will disadvantage specifically Black candidates and other students of color in the admissions process. And then finally, it will fuel racist stereotypes about people of color, including and specifically Black women,” Pappoe added. 

In the event that the Supreme Court did rule in favor of SFFA, Pappoe predicted it would not take long for diversity on college campuses to be affected. 

“In the blink of an eye, I can see that universities that have these policies that no longer want to have the policies will now have a reason to drop these policies. It could happen in this current cycle,” she said, predicting that it could take less than a year. 

Harvard banners hang outside Memorial Church on the Harvard University campus in Cambridge, Massachusetts, U.S., on Friday, Sept. 4, 2009. 

Harvard banners hang outside Memorial Church on the Harvard University campus in Cambridge, Massachusetts, U.S., on Friday, Sept. 4, 2009. 
(Photo by Michael Fein/Bloomberg via Getty Images)

Because of this, Jonathan Feingold, an associate professor at Boston University School of Law, said it should be “concerning” that the Supreme Court may do away with affirmative action on college campuses.

“For anyone who’s committed to a racial diversity on campus, it certainly should be concerning to think of a future in which the Supreme Court prohibits any university from taking race into account,” he said. “I think anyone who’s interested in a racially diverse campus, among other elements of diversity, [it] warrants concern.” 

The Supreme Court is looking specifically at education in considering these cases, but their decision could have impacts for other industries as well. 

Feingold emphasized the importance of affirmative action in employment, saying it remains “a potent mechanism to make processes just more fair and neutral, such that the people who should have been there from the beginning are there now.” 

Atkins also warned that depending on what the court says in their ruling, there could be a “domino effect” in other areas. 

“Here, we are talking about just the context of education. However, if they’re holding that the consideration of race is a violation of the equal protection clause, then I think that we will see a domino effect in other cases that could be touched,” Atkins said. 


But, this would not necessarily be a bad thing, Heritage Foundation senior legal fellow Hans von Spakovsky told Fox News Digital. “I hope anywhere where race is being used for purposes such as awarding scholarships, hiring, will realize that they cannot do it.”

“What the folks who support this are doing is setting up the same kind of racial spoils system that our civil rights laws were intended to stop, and the only thing they are changing is who benefits and who hurts,” von Spakovsky added.   

Harvard’s policies may even violate the Civil Rights Act, Angela Morabito, spokesperson for the Defense of Freedom Institute told Fox News Digital. 

“It is painfully obvious from what Harvard and other elite institutions are doing is they are discriminating in their admissions process based on race,” Morabito said. “And under Title VI of the Civil Rights Act of 1964, it is illegal for any institution receiving federal funding to do that. It’s just not right.” 

And while supporters of affirmative action warn of a decrease in diversity on campuses, Jeremy Rovinsky, a prosecutor and former dean of the National Paralegal College, predicted that doing away with race as a consideration in admissions policies could increase the number of Asian Americans in higher ed institutions. 

“I don’t know that anyone can really predict the future… but I think that, at least in the short run… if it goes in the direction of [SFFA], then we’re going to see more Asian representation at Harvard, and more Asian representation, therefore, stemming into the corporate world from Harvard and from the top schools.” 

Edward Blum, the President of Students for Fair Admissions said if the Supreme Court rules in favor of Students for Fair Admissions, it will “restore the color-blind legal covenant to American universities and colleges.” 

“If the Supreme Court rules that race is unconstitutional, then we will go back to what the principles of what our civil rights movement is all about,” he added. “And those principles are a student’s race and ethnicity shouldn’t be used to help him or harm him in gaining admissions to a college or university.”  

Virginia’s Lieutenant Governor Winsome Sears submitted an amicus brief to the Supreme Court in the case, calling the court’s previous decision in the Grutter case “dangerous,” and noting the 25-year expiration date. Sears told Fox News Digital that it was important to create a K-12 educational system that works for everyone, so race is not necessary. 

“Ultimately, history will prove us right, because we have tried race-based discrimination, and it doesn’t work,” she told Fox News Digital. “What this is about is educational opportunity. We have to ensure that all children have access to those opportunities, so they will be able, on their own, without race-based policies, to be afforded the ability to gain entry into these universities. That’s the issue, and the children don’t have it.” 


The Supreme Court in Washington.

The Supreme Court in Washington.
(AP Photo/J. Scott Applewhite)

While the Supreme Court is not expected to announce a decision on the case until 2023, recent rulings have shown that the justices are not afraid of usurping set precedent, and even them taking the case illustrates a willingness to overturn the Grutter case. 

“I think the Supreme Court chose to hear it because the composition of the court is different,” Holley said. “That’s the only change. These plans are no different than other plans, the only difference is that the composition of the court has changed, that’s why many people believe the court is primed to strike down that long-term precedent.” 

The court choosing to take up the case led Herman to believe they may rule in favor of SFFA, overturning past precedent. “I would be hopeful that since they decided to take this case up, that they are ready to revisit their precedent from 2003 and that they’re ready to say once and for all that our Constitution does demand colorblindness and that the color of people’s skin should not be considered when being admitted to college,” she said. 


David Bernstein, the Executive Director of the Liberty and Law Center at the Antonin Scalia Law School at George Mason University also said he predicted that the Court would find the Harvard and University of North Carolina admissions plans as unconstitutional. 

“I think there is any doubt about the willingness of the court to be more aggressive about this, it was dispelled by the abortion case,” he said. “When it comes to affirmative action, the elite will cry and scream and get very upset… but these sorts of policies have always been extremely unpopular in the American public, even in California.” 

Regardless of predictions, the long-term ramifications of the case will depend on how the court rules, Bernstein added.

“If they issue a really stringent opinion that completely bans the use of race in college admissions, and probably elsewhere, that could have really strong reverberations,” he told Fox News Digital. 

“If the Supreme Court issues a stringent ruling that bans the use of race entirely without any real outs, that could have a really significant effect on how race is used by the government. If, however, they continue the pattern they’ve had in the past where they say we disfavor using race by government, but here are some circumstances which they’ll use it, that loophole will be used by government entities to continue doing what they’re doing,” he added. 

Pappoe also emphasized that how broad the ramifications of the decision are will depend on how the court writes it. 

“If the court… says very specifically that admissions policies that consider race are unconstitutional, then that’s limited. But if the court comes out swinging and says policies that consider race in any capacity are unconstitutional, then of course, that leads to a much wider net,” she added. 


In the end, it comes down to “basic fairness,” Rovinsky said. “What’s at stake is, in a sense, basic fairness, people being judged as they are, their achievements, not just the color of their skin, or their racial background.” 

Despite the speculation and predictions, Rovinsky noted “you never know how a court can decide, the best we can do is speculate.” 

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