FURTHER UPDATE Tuesday 6:46 p.m.  The UNC-Chapel Hill case has now been docketed as 14-954 and has been assigned to District Judge Thomas D. Schroeder of Winston-Salem, in the Middle District. 

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UPDATED 6:48 p.m.   The Harvard case has been docketed by the U.S. District Court in Boston as 14-14176.  It has been assigned to District Judge Denise J. Casper.   The UNC-Chapel Hill case does not appear to have been docketed yet.

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The saga over the use of race in selecting new college entrants that began with the Supreme Court’s famous ruling in Regents of the University of California v. Bakke nearly four decades ago now has a new chapter — and it is intended to be the final one.  Two lawsuits, filed Monday in federal courts against two major universities, are crafted to eventually put before the Supreme Court an explicit plea to overrule Bakke and later decisions on the issue.

The lawsuits are, in a way, sequels to the Court’s ruling last year in Fisher v. University of Texas at Austin — a case that is itself on the way back to the Supreme Court — but their goal is a more sweeping one than the one advanced so far in the Fisher case.

Harvard University — ironically, the same institution that had provided an affirmative action model that the Supreme Court embraced in the Bakke case — is one of the targets of the new challenges.  The other lawsuit names the University of North Carolina at Chapel Hill.

“Given what is occurring at Harvard and at other schools,” the lawsuit filed in Boston argued, “the proper response is the outright prohibition of racial preferences in university admissions — period.  Allowing this issue to be litigated in case after case will only perpetuate the hostilities that proper consideration of race is designed to avoid.”

The North Carolina complaint, filed in Greensboro, often uses some of the same language as in the Harvard case.  It asserted that “UNC-Chapel Hill and other academic institutions cannot and should not be trusted with the awesome and historically dangerous tool of racial classification.  As in the past, they will use any leeway the Supreme Court grants them to use racial preferences in college admissions — under whatever rubric — to engage in racial stereotyping and other forms of discrimination to advance their social-engineering agenda.”

Both lawsuits were filed by an organization headed by the same civic activist and strong foe of race-based policymaking, Edward Blum, who put together the Fisher case and is now planning to return that case to the Court in coming weeks.   The organization suing now is the Students for Fair Admissions, Inc., a non-profit advocacy group created to represent students who fail to gain admission to major colleges  and believe that their race was the reason; Blum is its president.

He also is president of the Project on Fair Representation, which has been closely tied to the Fisher case.

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

The lawsuits do not ask the courts to abandon the idea that racial diversity among college students is a valid educational goal.  Instead, they contend that diversity can be achieved by race-neutral alternatives, so public colleges and those that receive federal funds should be ordered to end, altogether, any use of race in the process.

Besides Bakke, the lawsuits specifically aim at the Court’s 2003 decision in Grutter v. Bollinger.  In last year’s Fisher decision, the lawyers for the disappointed University of Texas applicant, Abigail Noel Fisher, did not ask the Court to strike down the Grutter precedent.  Even so, the resulting decision in Ms. Fisher’s case largely supplanted Grutter with a new and more demanding test for colleges when they use race as a factor in admissions.

Because these cases will proceed initially in federal district courts, the judges assigned to them will not have the power to overrule any Supreme Court decision.  The Court has made it clear repeatedly that, if any of its rulings is to be set aside, only the Justices have the authority to do so.

However, the Harvard and UNC lawsuits clearly were prepared to build a case in lower courts so that, perhaps two or three years from now, the lawsuits could reach the Supreme Court for an ultimate test of affirmative action, at least in college admissions.

Because Harvard is a private university, it was sued under Title VI of the 1964 Civil Rights Act, which bars racial discrimination in education at institutions that receive federal funds — as Harvard clearly does.

UNC-Chapel Hill is a state university, so it is subject to the Fourteenth Amendment’s guarantee of legal equality.

Each lawsuit names only the Students for Fair Admissions as the suing party.  But each also refers to an anonymous applicant who is said to have been highly qualified but did not get into the university being sued, allegedly because of a racial factor in the admissions policy, and each also mentions potential future applicants who seek protection against the chance that they would be denied admission because of their race, based on the admissions policies said to be to blame.

The filings in each case are lengthy, primarily because each goes into extended detail about the admissions policies being challenged, to support the argument that they cannot satisfy “strict scrutiny” and that the same goal of campus diversity could be achieved — and even more successfully — by using race-neutral alternatives to attract minority students.

Among the alternatives suggested in the Harvard case would be the elimination of special admissions opportunities for the children of Harvard alumni.   About 30 percent of such “legacy” applicants are admitted, the complaint said.  That means that there is “a competitive advantage to mainly white, wealth applicants, while undermining the chances for admission of socioeconomically disadvantaged and minority applicants,” it added.

The complaint also contended that Harvard has a policy of giving preferences to applicants whose parents make significant money contributions to the university, and it suggested that “minority students are far less likely to be children of wealth donors.

In the North Carolina-Chapel Hill case, one non-racial alternative the complaint mentioned would be a percentage plan, under which the university would guarantee admission to a set percentage of graduates from high schools in the state.  (The University of Texas at Austin had just such a program, before it added to that a new program in which race plays some role in the admissions process.)

The Harvard complaint, while making a broad-based challenge to its admissions policy overall, is focused on its claim that those policies have the main effect of discriminating against high-achieving Asian-American applicants.

The case against UNC-Chapel Hill focuses on the claimed negative impact on both African-American and Asian-American applicants.  At UNC, the complaint argued, the university claims that it is only using race as a “plus” factor; in reality, the complaint contended, race is the dominant factor in its selection process.

 

 

 

Posted in Affirmative Action After Fisher, Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Direct new challenges to Bakke ruling (FURTHER UPDATE), SCOTUSblog (Nov. 17, 2014, 10:17 AM), http://www.scotusblog.com/2014/11/direct-new-challenges-to-bakke-ruling/