The federal lawsuit challenging race-conscious admissions practices at the University of North Carolina at Chapel Hill – like a similar case involving Harvard in another federal courtroom – is likely to end up in the high court in a similarly prolonged legal battle, according to some observers.
The cases are also, they suggest, part of a new wave of challenges to affirmative action in higher education that are likely to continue.
“It’s really the recycling of arguments that we have seen in past challenges that have been addressed by the court,” said Dr. Liliana M. Garces, an associate professor in the school of education at the University of Texas at Austin and an affiliate faculty member at the UT School of Law.
Students for Fair Admissions sued UNC Chapel Hill and Harvard separately in 2014, alleging in both cases that race-conscious affirmative action practices at the schools have unfairly and illegally penalized Asian American and White applicants.
On Friday, both parties asked U.S. District Judge Loretta C. Biggs to issue a ruling based on their filings without going to trial. Biggs, appointed to the bench by President Obama in 2014, previously denied a motion by UNC to dismiss the suit.
Attorneys for UNC contend that its policies adhere closely to constitutional requirements and the high court’s prior directives, and that UNC has a “compelling interest” in racial diversity’s educational benefits.
SFA, however, alleges an overemphasis on race and inadequate consideration of socioeconomic status and other ways of achieving racial diversity in student admissions. It argues that UNC and Harvard have exceeded how the U.S. Supreme Court has allowed colleges and universities to use race as one of multiple factors in college admissions, to the extent of unfair bias against Asian and White students.
In 2016, the University of Texas at Austin prevailed before the Supreme Court in a similar case brought against that institution in 2013.
SFA president Edward Blum, a legal strategist and politically conservative rights activist, was involved in that litigation. He has organized other cases in recent years to challenge race preferences and to attempt to set legal precedents in areas beyond education, including employment, voting rights and government contracts.
Garces, who is an expert on legal cases surrounding the use of race in college admissions, said the Supreme Court “has taken a very commonsensical approach that is supported by research – that schools may consider race and socioeconomic status, not just one or the other. And under current precedent, race can only be a small factor.”
Noting that Students for Fair Admissions lost a similar case against UT Austin in 2014 – also known as the Fisher case – Garces said the string of actions “represent the ongoing attack by conservative organizations, despite the ruling by the Supreme Court in Fisher.”
“And now with the changes to the composition of the court and the changed administration,” she added, “they’re trying to take advantage of these new courts to get a more favorable ruling. It’s a strategic effort to relitigate those issues from the past, but also to try to discourage other institutions that continue to have race as a factor in their admissions processes, even if it’s a factor that meets legal criteria.”
In a letter posted Friday on the UNC Chapel Hill website and addressed to “The Carolina Community,” Chancellor Carol L. Folt and Executive Vice Chancellor and Provost Robert A. Blouin defended the school’s position and sought to allay any feelings among students that they were unqualified to be admitted based on the lawsuit’s allegations.
“We are proud of the contributions our students make in our community, and we want each of you to know that you rightfully earned your place here,” they wrote. “We are grateful you chose to attend Carolina and look forward to all you will accomplish in the future. The opportunity to love and learn in a diverse community that represents a broad range of backgrounds, talents and life experiences is critical to your personal and professional development. Students, faculty and business leaders who hire hundreds of our graduates each year agree the strength of a Carolina education lies in the diversity of experiences among our student body.”
The outcome of the UNC case and the Harvard case are difficult to predict, agreed Garces and Ernest Ezeugo, a program associate in the education policy program at New America, a non-partisan think tank.
The rulings likely will hinge on the “deep specifics” of evidence and how legal arguments are framed, said Ezeugo.
Of four likely possible outcomes outlined by Ezeugo – either side could win with a broad ruling and major impact or a narrow ruling with little impact – he predicted a narrow ruling for the victor.
“I don’t think either the Harvard or the UNC case will be the end all, be all of considering race in college admissions” he said. “And I don’t think they’ll be the last major cases of this onslaught of legal challenges to race-based admissions policies from organizations like Students for Fair Admissions, from state court actions, and Office of Civil Rights complaints. We’re in a new wave of these challenges.”
And the mere possibility of getting sued could influence colleges and universities across the nation that use race as a factor in diversifying their student populations.
“These cases make some colleges nervous,” said Ezeugo. “Colleges that are not in the spotlight but are paying close attention, how will they respond?”
Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law, said he believes opponents of any use of race in admissions will “keep case-testing” with litigation in hopes of eventually wining “a constitutional ban entirely on race-conscious” actions.
“The advocacy groups will keep testing the waters,” he said.
Class and socioeconomic status sometimes operate as a proxy for race, and those criteria tend to face less opposition, said Lake.
“When the issue of race is on the table in any way,” he said, “it triggers strict judicial scrutiny.”
LaMont Jones can be reached at firstname.lastname@example.org. You can follow him on Twitter @DrLaMontJones