Terry Eastland

In Grutter v. Bollinger, decided in 2003, Justice Sandra Day O’Connor upheld race preferences in higher education but also declared they must have “a termination point.” So when a lawsuit against preferences in admissions is brought, there is a presumption that they could be terminated, perhaps even in a ruling applicable to schools across the country.

Last month, two cases challenging preferences were filed in federal courts, one against Harvard College, the other against the undergraduate school of the University of North Carolina at Chapel Hill. The plaintiff in both is Students for Fair Admissions (SFFA), a new nonprofit whose members include, according to the group’s press release, “highly qualified students recently denied admission to both schools, highly qualified students who plan to apply to both schools, and their parents.” The organization and its members support race-neutral admissions and seek nothing less than the end of race preferences in higher education and the discrimination they entail.

Like many other elite undergraduate schools across the country, Harvard and UNC-Chapel Hill use race preferences to admit their classes. Under current law, preferences challenged in court must undergo “strict scrutiny” and are permitted only when they serve a compelling governmental interest that cannot be achieved through race-neutral means. In the context of higher education, “diversity,” to use the shorthand expression, is the only compelling interest the Supreme Court has recognized.

SFFA is prepared to argue that race-neutral alternatives capable of achieving diversity are available to both schools, and that the failure to adopt such alternatives violates federal law and the Constitution. SFFA points to preferences based not on race but socioeconomic criteria. “This approach is particularly effective,” the organization argues, “when combined with increased use of financial aid, scholarships, and recruitment to attract and enroll minority applicants” and with “the elimination of admissions policies and practices, such as legacy preferences and early admission, which operate to the disadvantage of minority applicants.”

SFFA contends that UNC-Chapel Hill’s failure to avail itself of race-neutral alternatives “is especially troubling” because it knows better. In 2012, the school conducted a study to determine whether automatically admitting in-state applicants finishing in the top 10 percent of their high school class would work about as well as racial preferences in achieving diversity. The study showed that, indeed, the percentage plan would work better than race preferences, admitting slightly more minorities. But UNC-Chapel Hill refused to adopt the plan. Its central objection: The plan would admit students with an average SAT score 56 points lower than that of the students admitted under the current, racially inflected process.

SFFA says this is a “trivial decrease” in average SAT scores, and it would seem so. A question for the courts in both cases, but especially the one brought against UNC-Chapel Hill, is whether a race-preferential admissions process can be maintained when a plausible race-neutral alternative is available. Last year in Fisher v. University of Texas at Austin, the Supreme Court’s most recent case on race preferences in admissions, Justice Anthony Kennedy called for stricter judicial scrutiny. That more skeptical approach could wind up constraining the use of preferences at more schools than just UNC-Chapel Hill and Harvard.

The SFFA lawsuits also challenge preferences at their very root by taking on the diversity rationale. Obtaining the educational benefits of a diverse student body is the rationale, simply stated. A diverse student body will include skilled musicians and artists and others with special talents. And it will include “underrepresented” minorities—African Americans, Hispanics, and Native Americans. And not just a few underrepresented minorities but “a critical mass,” as Justice O’Connor wrote in Grutter.

“Critical mass” surely involves a numerical definition. But higher educators are loath to address the “mystical critical mass,” as Justice Antonin Scalia has called it, and officials at neither Harvard nor Chapel Hill are likely to be eager to say much about it should the lawsuits proceed. Indeed, during oral arguments in Fisher, Chief Justice John Roberts asked the defendant’s lawyer what critical mass the University of Texas at Austin is “working toward,” only to be told, “We don’t have one.” Likewise holding things tight, Harvard no longer allows the public to examine admission rates by race.