Supreme Court Previews

The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at two cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (No. 20-1199)

Oral argument: Oct. 31, 2022

Court below: U.S. Court of Appeals for the First Circuit

Questions as Framed for the Court by the Parties

(1) Whether Grutter v. Bollinger should be overruled and institutions of higher education should be banned from using race as a factor in admissions; and (2) whether Harvard College violated Title VI of the Civil Rights Act by discriminating against Asian American applicants and abandoning race-neutral alternatives.

Facts

Students for Fair Admissions, Inc. (SFFA) constitutes a coalition of applicants and prospective applicants to institutions of higher education and their families and includes at least one Asian-American member who applied for and was denied admission to Harvard. President and Fellows of Harvard College (Harvard) is a governing board of Harvard College. Harvard receives financial support from the federal government and thus is subject to Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on various characteristics including race. A typical Harvard application file includes various materials, such as the applicant’s basic data, family information, SAT scores, and essays. Harvard permits students to identify their race but does not require them to do so. The application is reviewed by a first reader, subcommittee, and full committee; then, a post-admission review is conducted. Harvard maintains that classroom diversity is essential to achieving its educational mission and, to that end, considers race in the admission process. SFFA contends that Harvard discriminates against Asian American applicants by assigning lower personal and overall ratings to these students as compared to applicants of other races. The personal rating “summarizes the applicant’s personal qualities.”

On November 17, 2014, SFFA filed suit against Harvard, alleging that Harvard violated Title VI by discriminating against Asian Americans. SFFA alleged six causes of action, including intentional discrimination against Asian Americans and impermissible racial balancing. The U.S. District Court for the District of Massachusetts stayed the action until the Supreme Court’s ruling in Fisher v. University of Texas at Austin on June 23, 2016. Harvard filed a motion to dismiss for lack of standing, which the court denied. Harvard also moved for judgment on the pleadings as to two counts, and the court granted its motion.

SFFA appealed the decision to the U.S. Court of Appeals for the First Circuit. The First Circuit affirmed the district court’s judgment, holding that although SFFA had standing, Harvard’s admission program survives strict scrutiny. The First Circuit affirmed that Harvard does not intentionally discriminate against Asian Americans and thus does not violate Title VI.

On February 25, 2021, SFFA filed a petition for a writ of certiorari. The United States Supreme Court granted certiorari on January 24, 2022.

Legal Analysis

SFFA’S STANDING TO CHALLENGE

HARVARD’S ADMISSIONS POLICY

SFFA explains that because SFFA is a voluntary membership association, it must prove associational standing. SFFA contends that it satisfies Hunt v. Washington Apple Advertising Comm’n’s three-part standing test because (1) its members have “standing to sue in their own right”; (2) the litigation is relevant to the organization’s purpose; and (3) the litigation does not require individual members’ participation. SFFA argues that its associational status does not affect its standing since the Court routinely decides cases brought by other membership associations.

Harvard does not dispute that SFFA satisfies Hunt’s tests. However, Harvard counters that SFFA is controlled by “bystanders” who have no actual stake in the outcome. Harvard points out that applicants who are allegedly members of SFFA neither finance the organization nor select the board. Thus, Harvard argues that the associational standing doctrine, which allows “genuine membership organizations” that embody the members and their interests to represent the injured members in a lawsuit, does not encompass SFFA. Harvard also points out that Supreme Court precedent involving challenges to college admissions programs, University of California Regents v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v. University of Texas at Austin, had been brought by individuals, not organizations.

WHETHER TO OVERRULE GRUTTER V. BOLLINGER

According to SFFA, courts will typically consider three factors when deciding whether to overrule precedent: whether the prior decision 1) is “grievously or egregiously wrong,” 2) has caused significant negative consequences, and 3) created substantial reliance interests. SFFA asks the Court to overrule Grutter and claims that the Court need not consider whether it should overrule Bakke or Fisher. SFFA argues that Grutter contravenes the Fourteenth Amendment’s history of abolishing racial distinctions. SFFA contends that the interest in a diverse student body is not more compelling than other interests that the Court has rejected as insufficiently

Winter 2023 • THE FEDERAL LAWYER • 49 compelling to justify racial classifications, such as “remedying societal discrimination.” SFFA further asserts that the Fourteenth Amendment forbids the assumption that race represents a valid proxy for certain viewpoints or experiences. SFFA highlights that race-neutral alternatives that focus on actual disadvantage are more narrowly tailored than Harvard’s admission process that uses race as a proxy for disadvantage.

Harvard counters that Grutter, Bakke, and Fisher should stand. Harvard argues that the Fourteenth Amendment does not support the absolute rejection of racial distinction, but rather supports equal protection. Harvard specifies that the Fourteenth Amendment’s history allows race-conscious measures. Further, Harvard counters that the interest in a diverse student body in higher education remains compelling. Har- vard cites Bakke and Grutter as opinions that highlighted the importance of education, the impact of racial diversity on an educational mission, and the benefits of a diverse classroom. Harvard also responds that considering race among many other factors is not racial stereotyping.

EVALUATING GRUTTER’S PROGENY

SFFA argues that Grutter and its progeny are unworkable because they lead Harvard to take contradictory positions, representing that race is not “outcome determinative” while simultaneously using race to maintain minority enrollment. SFFA posits that upholding Grutter requires the Court to develop exceptions against longstanding rules. For instance, SFFA maintains that Grutter departed from precedent by allowing courts to address motives in strict scrutiny analysis. SFFA also claims that Grutter gives too much deference to universities, and universities that take federal funds cannot claim “special” deference under the First Amendment while violating Title VI.

Harvard responds that the Court’s precedent recognizes the educational benefits that flow from diverse student bodies. In addition, Harvard points out that precedent strongly supports deference to universities regarding their educational missions. Harvard further argues that the Grutter court considered race as part of a holistic review rather than making it “outcome determinative.”

Harvard stresses that it does not discriminate against Asian American applicants and that race plays no role in considering applicants’ personal qualities. Harvard also claims that SFFA did not provide evidence that Grutter pushes Asian American applicants to hide their racial background. Harvard emphasizes that overruling precedent will lead to fewer underrepresented minority students being admitted.

Reliance Interests And Raceneutral Alternatives

SFFA argues that stare decisis only considers legitimate reliance interests. SFFA cites Dobbs v. Jackson Women’s Health Org’s contention that cases that infringe on “equality before the law” should be overturned and claims that there is no legitimacy in racial classifications. SFFA asserts that overruling Grutter will not require burdensome changes to the current admission policy because race is only one of multiple factors in Harvard’s holistic review. SFFA notes that Harvard’s admissions program does not rely on Grutter’s model. SFFA argues that Harvard does not follow Grutter’s 25-year deadline for considering race in the admission process and does not pursue a “critical mass” of underrepresented minority students. SFFA contends that Grutter’s race-based admissions have led to no progress, undermining its importance as precedent. SFFA argues that Harvard never considered adopting alternative, race-neutral admission processes until SFFA sued Harvard in 2014. SFFA states that Harvard’s professed concerns that a decrease in minority admissions will alienate and isolate minority students constitute proof that Harvard improperly uses quotas and posits that Harvard should consider available race-neutral alternatives.

Harvard counters that universities have substantial, legitimate reliance interests. Harvard argues that race-blind admissions would adversely affect universities that invested in individualistic and holistic admissions systems. Harvard explains that universities’ course design and faculty hiring are correlated to diverse student bodies, in a way that positively affects and is affected by student diversity. Thus, Harvard contends that overruling precedent is more than a mere change to an admission policy. Harvard also responds that racial classification is not the legitimate interest here; rather, the interest is in cultivating leaders who were exposed to diversity in education. In addition, Harvard argues that Grutter’s 25-year deadline is an aspiration rather than a firm deadline. Harvard argues that a university is not required to define “critical mass” because it need not pinpoint the level of minority enrollment that establishes diversity. Harvard notes that courts allow schools to consider race when there is no race-neutral alternative available. Harvard argues that adopting SFFA’s race-neutral alternative affects Harvard’s other academic goals, such as academic excellence or preventing the isolation of underrepresented students. Harvard states that the public has substantial interests since the precedent signals that diversity is essential to the nation’s democratic system.

Discussion

VIABILITY OF RACE-CONSCIOUS AND RACE-NEUTRAL ADMISSIONS

The State of Texas, in support of SFFA, asserts that the Court’s framework for race-conscious admissions is unpredictable. Professor David E. Bernstein adds that racial categories are arbitrary and often inaccurate when self-reported, making race-conscious admissions flawed. Oklahoma and 18 states (collectively, Oklahoma) argue that vague race-conscious admission frameworks should be abandoned in favor of race-neutral ones. Oklahoma contends that states which have banned race-conscious admissions have still been able to recruit diverse student bodies.

The College Board and other admissions organizations, in support of Harvard, maintain that the current legal guidelines for race-conscious admissions are predictable and have been well-adopted by universities. The University of Michigan (Michigan) emphasizes that race is often necessary to understand an individual applicant’s experiences. Michigan cautions that its past attempts at race-neutral admissions have failed to satisfy the university’s need for diversity. The Presidents and Chancellors of the University of California similarly warn that their past attempts to boost diversity through race-neutral admissions programs have been unsuccessful relative to race-conscious admission processes.

Interests Of Racial Minorities

Project 21, in support of SFFA, maintains that race-conscious admissions harm racial minority students by casting doubt on whether the students’ academic achievements were based on merit. The Asian American Coalition for Education and Asian American Legal Foundation raise concerns that race-conscious admissions perpetuate racial stereo- types and cause young Asian Americans to downplay and be ashamed of their racial identities. Pacific Legal Foundation notes that issues caused by race-conscious admissions extend beyond colleges, as K-12 schools have adopted race-conscious admissions.

The Council of Great City Schools, in support of Harvard, maintains that race-conscious admissions are necessary because primary and secondary education still confront racial segregation. The HR Policy Association emphasizes that diverse college classes are essential in increasing the number of underrepresented racial minorities in the corporate workforce. Asian American Legal Defense and Education Fund argues that race-conscious admissions acknowledge that Asians are a collection of unique subgroups and create diverse campuses which help Asian students with self-growth and safety.

Full text available at https://www.law. cornell.edu/supct/cert/20-1199. 

Written by Andrew Kim and Jade Lee. Edited by Victoria Quilty.

Moore v. Harper (No. 21-1271)

Oral argument: Dec. 7, 2022

Court Below: Supreme Court of North Carolina

Question as Framed for the Court by the Parties

Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

Facts

On November 4, 2021, the North Carolina Legislature passed new redistricting maps for its congressional elections. Twelve days later, the North Carolina League of Conservation Voters and several North Carolina Citizens (NCLCV) filed a complaint and motion for a preliminary injunction against several members of the North Carolina Legislature (Moore). On November 18, 2021, Rebecca Harper and other North Carolina citizens filed a separate complaint and motion for a preliminary injunction against the same defendants.

Both complaints alleged that the redistricting maps diluted the votes of racial minorities in violation of the North Carolina Constitution. On December 3, 2021, a threejudge panel of the Superior Court, Wake County consolidated the two complaints (collectively, Harper) and denied the motions for a preliminary injunction.

The Superior Court panel, upon examining the merits of the complaints, found that the redistricting maps were the product of “intentional, pro-Republican partisan redistricting.” While the court did not find direct evidence of intent, it nevertheless concluded that the probability of computer algorithms, which produced the maps, creating such partisan maps at random is infinitesimally small. The court did not find evidence of a racial motive in enacting the maps. The court ultimately concluded that the redistricting maps did not violate the North Carolina Constitution. It reasoned that the North Carolina Constitution does not provide the state’s courts with the authority to adjudicate gerrymandering claims because they are political questions properly addressed to the other branches of government. Therefore, it denied Harper’s claims and lifted the preliminary injunction.

On appeal, the North Carolina Supreme Court heard the case under its discretionary review, bypassing the state’s intermediate-level appellate court. The North Carolina Supreme Court reversed the Superior Court’s holding. First, it found that North Carolina courts do have the authority to hear gerrymandering questions. The court subsequently held that the redistricting maps violated the free elections clause, equal protection clause, free speech clause, and freedom of assembly clause of the North Carolina Constitution’s Declaration of Rights. The court then remanded the case to the Superior Court to either redraw the maps itself or oversee the legislature’s redrawing.

On February 25, 2022, Moore applied to the United States Supreme Court for a stay of the North Carolina Supreme Court’s order. Moore sought to keep the existing maps until the Court could itself decide the case on the merits. By this point, two more groups had joined the proceeding as NCLCV—Common Cause and several state legislators (collectively, state legislators). Harper and the state legislators, both respondents, filed separate briefs. While the Court denied the application, it granted Moore’s petition for a writ of certiorari on June 30, 2022.

Legal Analysis THE ELECTIONS CLAUSE

Moore, opposed to the adoption of the court-designed election map, posits that because the Elections Clause of the U.S. Constitution states that federal election rules in each state shall be determined by the “Legislature thereof,” state legislatures are the only governmental body permitted to set states’ election rules. Conversely, Moore argues, state courts lack the authority to set states’ election rules. Moore contends that the U.S. Constitution’s framers intended to assign this exclusive authority to state legislatures. Moore also points to the Constitution’s distinctions between delegating power to state governments or to their individual bodies, contending that its specificity in assigning election rulemaking to state legislatures indicates that power is not shared by another body of state government. Moore also contends that this division of authority is consistent with the founders’ view of election rulemaking as best suited to democratically accountable legislatures instead of unelected judges.

On the other hand, Harper argues that “Legislature” more broadly describes a body empowered by the people to create laws. Harper and the state legislators note that several founders expressed their belief that state legislatures cannot exceed the authority granted to them by their state constitutions. Therefore, Harper and the state legislators argue that judicial review serves to enforce these limits, including those on legislatures’ election rulemaking. The state legislators further argue that no historical evidence suggests the framers intended to exempt state legislatures from the separation of powers that is otherwise abundant in the Constitution. To the contrary, the state legislators note that, shortly before and after the U.S. Constitution’s enactment, several states enacted constitutional provisions regulating federal elections, suggesting that the founders intended to permit these limits in the Elections Clause. In fact, Harper contends, Congress has expressly required that state legislatures comply with their state constitutions in election rulemaking and authorized state courts to draw election maps under 2 U.S.C. §§ 2(a) and 2(c).

Source Of Authority

Moore argues that, because senators and representatives hold federal office, state governments’ power to pass laws governing their elections is limited to that granted in the Elections Clause and cannot be expanded by Winter 2023 • THE FEDERAL LAWYER • 51 state constitutions. Moore distinguishes limits on state legislatures’ procedural and substantive rulemaking power, noting that while state constitutions may regulate the procedural aspects of state legislatures’ election rulemaking, they cannot limit the legislatures’ substantive power prescribed by the U.S. Constitution. Moore additionally maintains that state constitutions’ restrictions on legislatures’ election rulemaking only applied to state elections, not federal elections.

Harper and the state legislators counter that state legislatures can only execute the federal power granted to them in the Elections Clause by passing state laws and are therefore subject to the constraints of their state constitutions in doing so. Harper and the state legislators argue that the Elections Clause does not shield state legislatures from review under their state constitution. Harper and the state legislators further contend that the Supreme Court has never recognized a distinction between procedural and substantive limits on state legislatures’ election rulemaking, and that many state constitutions contain both. Harper also asserts that the Tenth Amendment, which grants the states all authority not expressly addressed in the U.S. Constitution, allows states to structure their own governments, including their legislatures’ election rulemaking.

Legislative Power

Moore argues that, because the Elections Clause specifically authorizes Congress to change states’ federal election rules, states may not create additional checks on legislatures’ election rulemaking. Pointing to states’ failures to enact founding-era proposals for limits on state legislatures’ election rulemaking and courts’ refusals to strike down any election map before 1932, Moore argues that permitting judicial review of their decisions would render the Elections Clause meaningless.

Moore also asserts that under North Carolina’s state constitution the state’s legislative, executive, and judicial functions are separate, and the state judiciary is neither part of the state legislature nor delegated any of its power over election rulemaking. Moore contends that the only North Carolina statutes delegating power to its courts related to election rulemaking concern procedures for challenging election rules and do not convey any substantive authority to the courts regarding the rules themselves. Moreover, Moore argues, state legislatures may only delegate their power to the executive branch, not the judiciary. Regardless, Moore maintains that the intricate policymaking that North Carolina courts took up in crafting election maps is an undelegated legislative power.

Noting that state legislatures’ election rulemaking falls squarely within their traditional legislative role, Harper and the state legislators counter that the standard constraints on legislative action apply to election rulemaking, including judicial review of their compliance with state constitutions. The state legislators further maintain that it would be inconsistent with the enforcement practice associated with federal constitutional doctrines, such as the Equal Protection Clause, to suggest that state courts cannot interpret and apply the Elections Clause of the U.S. Constitution. Harper additionally contends that legislatures may delegate non-adjudicative functions to their states’ judicial branches. The state legislators point to states’ post-1820 laws and Congress’s constraints on state legislatures’ power under the Elections Clause to argue that the Elections Clause has long been widely understood to permit limitations on state legislatures’ election rulemaking power.

Additionally, Harper and the state legislators argue that North Carolina’s legislature delegated a judicial, not legislative, power to the state’s courts in empowering them to review election rules’ constitutionality. Harper and the state legislators note that the North Carolina courts correctly followed the procedures in those statutes in adjudicating all stages of this litigation. The state legislators further maintain that the history of North Carolina’s election statutes’ enactment and subsequent use, as well as their inclusion of the phrase “all elections,” indicate that they apply to both state and federal elections.

Discussion JUDICIAL ACTIVISM

Arkansas and twelve other states (States), in support of Moore, contend that allowing state courts to override the legislature’s election laws detracts from the will of the people. In other words, the States argue that the North Carolina Supreme Court improperly acted as a law-making body and usurped the people’s power in limiting the legislature from creating its own redistricting maps.

Pennsylvania State Senator Kim Ward and the Republican Caucus of the Pennsylvania Senate, also in support of Moore, posit that state court judges are not accountable to the people in the same manner as the other branches of government.

Former California Governor Arnold Schwarzenegger, in support of Harper, counters that state constitutions themselves are enacted by the people and so state judges are ensuring that legislators follow the people’s wishes. Schwarzenegger further states that there is no proper distinction between judicial review of election-related constitutional provisions and other provisions of state constitutions. As such, Schwarzenegger asserts, if people accept that the courts should ensure state actors follow the state constitution in other contexts, this context is no different. Scholars of State Constitutional Law, also in support of Harper, emphasize that judicial review is a necessary check on legislative power and therefore protects the people’s constitutional rights.

Confidence In Elections

America’s Future, Inc., in support of Moore, expresses its fear that allowing state courts to strike down state election laws so close to election day will undermine confidence in elections. America’s Future argues that elections will become a battle between lawyers litigating in the state courts rather than about the will of the voters. Lawyers

Democracy Fund and State Legislators (Legislators), also in support of Moore, posit that allowing the courts to create election law will create partisan battles in the court system. The Legislators maintain that regardless of the content of a state’s constitution, partisan activists twist its meaning to ensure election laws that favor their party.

The Anti-Defamation League and other religious organizations (ADL), in support of Harper, counter that rather than undermine confidence in elections, state courts ensure that there is no discrimination against minority groups. The ADL fears that the will of the majority could overcome state legislatures and erase the ability of minority groups to vote. Human Rights Watch, in support of Harper, contends courts should be able to ensure voter confidence in election integrity. Full text available at https://www.law. cornell.edu/supct/cert/21-1271.

Written by Dustin Hartuv and Matthew Hornung. Edited by Kate Sullivan.