Elite College Admissions Cases Put Justices on Collision Course

Bloomberg Law

Greg Stohr

October 28, 2022

A showdown over college affirmative action at the US Supreme Court next week pits the court’s liberal wing against Chief Justice John Roberts and his dream of a constitutional ban on racial preferences.

The court will hear arguments Monday on admissions policies at Harvard College and the University of North Carolina in cases that could mean fewer Black and Hispanic students at selective universities. The schools are battling an interest group that seeks to overturn decades-old precedents letting colleges consider race in choosing students.

Proponents say the practices help create a diverse campus, benefiting students of all races, while critics say the universities are simply engaging in racial discrimination. The broader question is whether the Constitution and federal civil rights laws are colorblind, banning discrimination no matter what race the victim is.

Roberts, part of the court’s 6-3 conservative majority, made his position clear years ago. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote in a 2007 case involving school integration at the K-12 level.

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New Justice Ketanji Brown Jackson signaled the opposite conclusion earlier this month in a voting rights argument, saying constitutional amendments enacted after the Civil War were designed to authorize race-based governmental policies.

“The framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race-conscious way,” said Jackson, the court’s first Black female justice.

The cases threaten to drive yet another wedge through a divided country. They will test whether constitutional provisions enacted to protect newly freed slaves can be used to thwart policies that benefit those slaves’ descendants — but arguably penalize others.

They could also recast the 1964 Civil Rights Act, a law that was aimed at eradicating racial segregation and is now being wielded as a tool to dismantle affirmative action.

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