The Supreme Court heard oral arguments regarding affirmative action – the practice of favoring individuals belonging to groups that have been discriminated against historically – in college admissions on Oct. 31. Affirmative action is often used to promote diversity on college campuses and in the workplace. The lawsuits filed in 2014 by Students for Fair Admissions (SFFA) claim that Harvard violates Title VI of the Civil Rights Act, while the University of North Carolina violates the 14th Amendment’s Equal Protection Clause. 

Title VI of the Civil Rights Act states that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from any program or activity receiving Federal financial assistance.” SFFA claims that at Harvard, a federally-funded program, “race is a minus for Asians… Asians should be getting into Harvard more than whites, but they don’t because Harvard gives them significantly lower personal ratings.” 

Harvard’s spokesperson responded to this claim, stating, “The district court found… that there was ‘no evidence of discrimination against Asian Americans whatsoever.’… There was consistent, unambiguous, and convincing testimony that there was no discrimination in the administrative admissions process in general and the personal rating in particular.” 

The Equal Protection Clause of the 14th Amendment declares that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States… nor deny to any person within its jurisdiction the equal protection of the laws.” 

SFFA claimed in its lawsuit that UNC violates this by “unfairly using race to give significant preference to underrepresented minority applicants, while ignoring race-neutral alternatives to achieve a diverse student body.” 

In the SCOTUS hearing, SFFA’s representative acknowledged, “the expert that UNC presented argued that 1.2 percent of the decisions were influenced by race,” then disagreed, arguing, “the fact that they receive 40,000 applications a year, that’s hundreds if not thousands of applicants who are being affected by race every year.” 

This is not the first time in the recent past that affirmative action has been challenged in the Supreme Court. In 2016’s Fisher vs. University of Texas, the Supreme Court ruled 4-3 in favor of affirmative action. 

In that opinion, Justice Kennedy wrote, “the compelling interest that justifies consideration of a race in college admission is not an interest in enrolling a certain number of minority students, but an interest in obtaining the educational benefits that flow from student body diversity.”

Preceding the Supreme Court’s decision to hear SFFA’s arguments, a federal district court had ruled in Harvard’s favor in 2019 – a decision that was upheld by the U.S. Court of Appeals for the First Circuit in 2020 – and the District Court of North Carolina ruled in favor of UNC, issuing a 155-page report concluding that the “admissions process complies with precedent reaffirmed as recently as 2016 by SCOTUS,” referring to Fisher vs UT.

Colleges and students alike are awaiting the Supreme Court’s final decision on this matter, which is expected to be released in early 2023.