The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Affirmative Action

Supreme Court Takes Two Cases Challenging Racial Preferences in College Admissions

One involves racial preferences at Harvard, the other at the University of North Carolina at Chapel Hill.

|The Volokh Conspiracy |


This morning, the Supreme Court decided to hear two cases challenging racial preferences in university admissions: Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina. These will be the first Supreme Court cases involving affirmative action in higher education since Fisher v. University of Texas II (2016), a ruling I critiqued here.

Obviously, the Court's composition has gotten more conservative since then, which means the justices are likely to take a tougher line against racial preferences than in previous decisions. It is even possible that the Court will overrule Grutter v. Bollinger (2003), the decision in which the justices endorsed the "diversity" rationale for racial preferences in educational institutions (though it's also possible that the Court will subject such preferences to tighter scrutiny, without categorically forbidding them).

The Harvard case is also notable because it will be the first Supreme Court affirmative action case involving allegations that the school in question has specifically targeted Asian-Americans for discrimination. The plaintiffs in the case presented extensive evidence indicating that the university disfavors Asian applicants not only relative to some other racial minorities, but even as compared to whites. The issue of anti-Asian discrimination by various elite educational institutions has attracted increasing attention in recent years, and is far from limited to Harvard.

I have a forthcoming article about the Harvard case, which will be published on the NBC website later today or tomorrow. In that  piece, I address the issues raised in greater detail. I will link to it here when it is up.

NOTE: My wife, Alison Somin, has coauthored an amicus brief urging the Supreme Court to hear the Harvard case, and is also co-counsel for the plaintiffs in a case challenging anti-Asian discrimination at the Thomas Jefferson High School for Science and Technology, in Fairfax, Virginia.

UPDATE: My NBC News article has been posted, and is now available here.

Ilya Somin is Professor of Law at George Mason University, and author of Free to Move: Foot Voting, Migration, and Political Freedom and Democracy and Political Ignorance: Why Smaller Government is Smarter.