• Curt Levey

Affirmative Action on the Line as SCOTUS Takes Harvard & UNC Cases


January 24, 2022


The Committee for Justice released the following statement by its president, Curt Levey, on the Supreme Court's decision today to hear lawsuits challenging race-based admissions and to possibly overrule Grutter v. Bollinger. Mr. Levey and his colleagues at the Center for Individual Rights represented the plaintiffs in the Grutter and Gratz cases. CFJ hosted a panel on this issue last year.


The Committee for Justice commends the Supreme Court for agreeing to review the constitutionality of affirmative action in university admissions. It is notable that the Harvard and University of North Carolina cases the Court will hear challenge discrimination against Asian Americans, thus highlighting the harm done by assessing applicants through a racial lens.


In 2003 in Grutter v. Bollinger (involving the University of Michigan), the Supreme Court called for "sunset provisions in race-conscious admissions policies" and expressed, at very least, an expectation that such policies would end within 25 years. That 25 year period is drawing to a close. So too may be the era of racial preferences in admissions now that a more conservative Supreme Court has agreed to take up the issue.


We won’t know for sure the fate of race-based admissions until 2023, because these cases won’t be heard until next fall, probably right before the 2022 elections. But at very least, we are pleased that the Court this term has shown a willingness to tackle difficult social issues—such as affirmative action, abortion, and Second Amendment rights—that Republican appointees on the Court have previously been timid about addressing.


The Supreme Court has taken up the issue of race-based admissions at an opportune time, in that many on the left now argue that “equity”—that is, equal results—rather than equal opportunity should be our society’s goal where racial disparities are alleged. If equity is the goal, then an argument can be made for race-based admissions. On the other hand, applying different admissions standards to different races is anathema to the objective of equal opportunity.


The constitutional and statutory legal standard has long been equal opportunity in name, but not always in practice, where affirmative action is concerned. The Harvard and North Carolina cases provide the Supreme Court with an opportunity to make clear that equal opportunity cannot bend to contemporary fashions about which racial groups are worthy of protection.