Compared to the thorny disputes that often characterize cases that reach the Supreme Court, the disputes in these two cases are refreshingly simple. SFFA alleges, backed by copious statistical evidence, that Harvard’s undergraduate admission process discriminates against Asian-American applicants compared to otherwise equivalent White applicants. SFFA argues that this places Harvard in violation of Title VI of the Civil Rights Act of 1964, which states that “No person in the United States shall, on the ground of race, color, or national origin… be denied the benefits of… any program or activity receiving Federal financial assistance.” Supposing Harvard does use race in admission decisions, and rejects Asian-American applicants who would be accepted if only their race differed, it is hard to imagine how the violation of the plain meaning of the statute could be clearer. Earning a degree is a core benefit provided by universities to the public, which someone rejected from admission to the university is denied. And like almost every college in the country, Harvard receives federal funding. Universities, even including the most elite institutions such as Harvard, are not above the law.
The lawsuit against UNC-Chapel Hill is similar: SFFA alleges that UNC exhibits an overwhelming tendency to admit underrepresented minority students at the expense of White and Asian-American applicants with superior academic credentials. Since UNC is a public university, SFFA argues that in addition to violating Title VI, these admission procedures are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment – as in Brown v Board of Education, which found racial segregation in public schools illegal, arms of the government are not generally permitted to discriminate based on race.
Harvard (and UNC), however, take a very different view. They point to over four decades of Supreme Court precedent from the Bakke decision onward, through which the Court has upheld race-conscious policies that consider race as one factor among many in admissions. Harvard argues that it has a compelling interest in obtaining the benefits that stem from having a student body that is diverse along many dimensions including race, and that it would be unable to achieve a comparably diverse class without considering race as a factor in admissions.
In practice, this is indeed the current operative law of the land. But it is also subject to fierce opposition from those, like Justice Thomas, who maintain that “a state’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause” and “that constitutional imperative does not change in the face of a ‘faddish theor[y]’ that racial discrimination may produce ‘educational benefits.’” Consistent with this, opponents of race-conscious admissions argue that these practices which deny people equal treatment because of their race are unfair and immoral. They further argue that the precedents upon which race-conscious admissions rely are a legally incoherent mess stemming from justices imposing their political preferences over the plain text of law.