The arguments are set to begin at 10am (1400 GMT) in appeals by a group founded by anti-affirmative action activist Edward Blum of lower court rulings upholding programmes used at the two prestigious schools to foster student diversity. The court confronts this divisive issue four months after its major rulings curtailing abortion rights and widening gun rights.
The court’s 6-3 conservative majority is expected to be sympathetic toward the challenges to Harvard and UNC.
The cases give the court an opportunity to overturn its prior rulings allowing race-conscious admissions policies. They also give it a chance to embrace an interpretation favoured by conservatives of the US constitution’s 14th amendment promise of equal protection under the law that would bar governments and other institutions from using race-conscious policies – even those crafted to benefit people who have endured discrimination.
The suits were filed separately against the two schools in 2014. One accused Harvard of violating Title VI of the Civil Rights Act of 1964, which bars discrimination based on race, colour or national origin under any programme or activity receiving federal financial assistance. The other accused UNC of violating the 14th amendment.
Blum’s group said UNC discriminates against white and Asian American applicants and Harvard discriminates against Asian American applicants.
The universities have said they use race as only one factor in a host of individualised evaluations for admission without quotas – permissible under Supreme Court precedents – and that curbing the consideration of race would result in a significant drop in the number of students from under-represented groups.
Many institutions of higher education place a premium on achieving a diverse student population not simply to remedy racial inequity and exclusion in American life but to bring a range of perspectives onto campuses.
Blum’s group told the justices in court papers that the Constitution requires colourblind admissions, quoting a famous line by conservative chief justice John Roberts from a 2007 ruling: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
It added that “any marginal loss in ‘cross-racial understanding’ could be remedied with alternatives far narrower than racial preferences, like making students take a class on the topic.”
The two schools and President Joe Biden’s administration, backing them, said categorically banning any consideration of an individual’s race would be inconsistent with equal protection.
UNC said there is a difference between a racist policy like segregation that separates people based on race and race-conscious policies that bring students together. The challengers’ arguments to equate the two “trivialise the grievous legal and moral wrongs of segregation,” the US justice department said in a brief.
Affirmative action has withstood Supreme Court scrutiny for decades, including in a 2016 ruling involving a white student, backed by Blum, who challenged the University of Texas after being rejected for admission, though the justices have narrowed its application.
The Supreme Court has shifted rightward since 2016 and now includes three justices who dissented in the University of Texas case and three new appointees by former Republican president Donald Trump.
That shift has experts predicting that the conservative justices may be poised once again to reverse a decades-old precedent just as they did in June when they overturned the 1973 Roe v Wade ruling recognising a constitutional right to abortion.
Blum’s group asked the Supreme Court to overturn a 2003 Supreme Court ruling in a case called Grutter v Bollinger involving the University of Michigan Law School that held that colleges could consider race as one factor in the admissions process because of the compelling interest of creating a diverse student body.
The Supreme Court first upheld affirmative action in college admissions in a 1978 ruling in a case called Regents of the University of California v Bakke that held that actions to achieve diversity were permissible but racial quotas were not.