Gail Herriot, Ilya Shapiro, Wai Wah Chin and James Copland

On October 31, the Supreme Court will hear oral arguments in two cases that challenge the use of racial preferences in higher-education admissions. A group called Students for Fair Admissions sued Harvard University and the University of North Carolina—the nation’s oldest private and public universities, respectively—over their affirmative action policies, which the group contends are unconstitutional because they discriminate against Asian Americans. The challengers argue that the Fourteenth Amendment and the federal law that forbids race discrimination by private educational institutions that receive federal funding require a race-neutral approach to accepting potential students.

In the 1978 Regents of the University of California v. Bakke case, the Supreme Court turned back a constitutional challenge to the use of race in admissions, allowing race to be considered as one of many factors. In 2003, our nation’s highest court in Grutter v. Bollinger again narrowly upheld race-conscious admission practices, if they are “narrowly tailored” to further student-body diversity. The Court noted, however, that public universities’ use of such admissions policies “must be limited in time.”