The Supreme Court’s Options in the Harvard and UNC Affirmative Action Cases

Earlier today, the Supreme Court heard oral arguments in cases challenging Harvard’s an the University of North Carolina’s use of racial preferences in admissions. The plaintiffs contend that Harvard and UNC’s admissions policies violate Title VI of the Civil Rights Act of 1964, and that UNC as a state institution is also in violation of the Equal Protection Clause of the Fourteenth Amendment (which restricts discrimination by the government, but not that by private parties). Harvard and UNC argue that their policies promote educationally valuable “diversity,” a purpose for which previous Supreme Court rulings  Grutter v. Bollinger (2003) and  Fisher v. University of Texas II (2016) allow at least some use of racial preferences.

In this post, I go over the major options before the justices. The conservative majority on the Court is highly likely to rule against Harvard and UNC. But there are a number of different ways it could do so, which have divergent implications for future cases. In my view, the best option is for the Court to simply rule that “diversity” is not a “compelling state interest” justifying the use of racial discrimination by government under the Fourteenth Amendment, and that such discrimination also violates Title VI. But that’s far from the only option available to the justices.

via reason.com

Ilya Somin