Two cases with a significant impact on higher education will be decided by the Supreme Court in 2023. Conservative justices will rule on affirmative action as well as a student loan forgiveness initiative offered by President Joe Biden, Democrat.
Dan Urmanwho teaches Supreme Court courses at Northeastern, expects both programs to be thrown out of court in the coming months.
“The toughest cases tend to wind down in late June, in part because they involve significant back-and-forth between the majority and the dissent,” says Urman, director of Northeastern's Law and Public Policy Minor. “Society as a whole, and especially the upper echelon, will prepare and prepare for these decisions.”
Urman and Martha Davisuniversity distinguished professor of law at Northeastern, offer their views on important decisions expected from the Supreme Court in the next six months.
Students for Fair Admissions v. President and Fellows of Harvard College. Students for Fair Admissions v. University of North Carolina
A group that opposes affirmative action argues that Asian and white students are discriminated against by policies that help black students get into private and public universities and colleges. Harvard's lawsuit seeks to hold private institutions accountable under Title VI of the Civil Rights Act of 1964, which states that programs receiving federal aid must not discriminate.
“The question is whether or not their admissions criteria violate Title VI's equality clause, which duplicates for private universities the constitutional standard,” says Davis, who co-directs the Program on Human Rights and the Global Economy. “The expectation is that the court will interpret the Equal Protection Clause in a way that does not permit the use of race as a criterion of admission, even if it is used in a way intended to correct past discrimination.”
Davis says the 6-3 conservative majority bodes poorly for programs meant to promote racial diversity.
“The fact that the court took this case really suggests that they wanted to put the final nail in the coffin of affirmative action,” Davis says.
Urman notes that nine states have repealed affirmative action policies since 1996.
“This is something that public agencies have responded to in the past in major states, including California and Texas,” says Urman. “Some states have stepped up outreach and recruitment, and others have pursued race-neutral plans, such as Texas.”top 10' plan. But I believe that banning the use of race altogether will make our nation's colleges and universities, both public and private, less racially diverse.”
Biden v. Nebraska
Six conservative states (Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina) argue that Biden does not have the authority to forgive $400 billion in student loans. The program, which offers up to $20,000 for millions of current and former students, has been put on hold.
“I'm sure the court will say that Biden overstepped his authority under what's called the HERO Act,” says Urman, noting that the law (originally passed in 2002) ensures that people in the US military are not penalized for debt student loan while representing their country abroad.
Urman says the court is likely to reject Biden's claim that the HEROES Act allows him to forgive student loan debt because of the COVID-19 pandemic, which he describes as a national emergency.
“You have Biden on '60 Minutes' saying:The pandemic is overUrman says. “I could imagine Justice [Samuel] Alito puts it in a footnote, in a judicial form of trolling.'
Urman expects the Supreme Court to invoke it doctrine on the main questions to suggest that Biden ask Congress to pass a law specifically addressing the student debt crisis. But in polarized Washington, adds Urman, “Everybody knows there's zero percent chance of that happening.”
Merrill v. Milligan
The court will rule on two important voting rights cases. This raises the question of whether the Voting Rights Act calls for a second congressional district favorable to Black candidates to be created in Alabama, where the plaintiffs claim the political map has been drawn to favor white candidates.
“In that case, I count six [conservative] is voting to further limit the Voting Rights Act,” Urman says, noting that the court has continually narrowed the scope of the law since John Roberts became chief justice in 2005.
Moore v. Harper
The other major voting rights case will decide whether state legislatures can give themselves the power to set election rules that violate state constitutions.
“The extreme view is that there would be no judicial role in looking at how states conduct their elections,” says Urman. “This would be one of the most important court decisions in history. It has the potential to turn American society upside down. But I don't think that will happen.
“I think the court will retain a role of judicial review – but a less powerful form than the challengers wanted.”
Brackeen v. Haaland
The Indian Child Welfare Act focuses on matching indigenous children with indigenous families in the foster care or adoption system. The future of the program will be decided by the court.
“It's similar to the affirmative action hypothesis in some ways,” Davis says. “One of the key questions is whether or not racial preferences are permissible under the Equal Protection Clause.”
Davis is unsure how the court will rule, based on questions raised by Judge Neil Gorshus.
“There was a lot of recognition that not allowing some kind of preference would really undermine racial dominance,” Davis says. “Gorsuch expressed sympathy for the racial position. He has a history of being infatuated with Indian tribes, even though that seems inconsistent with his overall conservative philosophy.”
303 Creative LLC v. Eleni
A graphic designer claims she is being forced to create websites endorsing same-sex marriage under Colorado's anti-discrimination law. Urman believes the conservative court will share her free speech claim.
“One side would have you believe that it amounts to making artists paint something they don't want to paint,” says Urman. “And then the other side says, sorry, if you want to do business in this state, you have to follow our public accommodations law.
“The general principle I heard at oral argument involves the more conservative justices saying, 'Don't we want people to be free to deny a request when it comes to their morals and their free expression?' says Urman. “On the other hand, when you're a business that operates and is open to the public in Colorado, that comes with liabilities.”
For media inquiriescontact Marirose Sartoretto at m.sartoretto@northeastern.edu or 617-373-5718.
