Two cases with major impact on higher education will be decided by the Supreme Court in 2023. The conservative-leaning justices will be ruling on affirmative action as well as a student-loan forgiveness initiative offered by President Joe Biden, a Democrat.
Dan Urman, who teaches courses on the Supreme Court at Northeastern, anticipates that both programs will be rolled back by the court in the months ahead.
“The harder cases tend to drop in late June, in part because they involve considerable back and forth between the majority and dissent,” says Urman, director of Northeastern’s Law and Public Policy Minor. “Society overall, and especially higher ed, will be bracing and preparing for these rulings.”
Urman and Martha Davis, university distinguished professor of law at Northeastern, offer their views on major decisions expected by the Supreme Court over 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 is arguing that Asian and white students are discriminated against by policies that help Black students gain admission to both private and public universities and colleges. The Harvard suit seeks to hold private institutions accountable to Title VI of the 1964 Civil Rights Act, which holds that programs receiving federal assistance must not discriminate.
“The question is whether or not their admission criteria are violating the equal clause of Title VI, which replicates 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 doesn’t allow any use of race as an admissions criteria, even if it’s used in a way that is intended to remedy past discrimination.”
Davis says the 6-3 conservative majority bodes ill for programs meant to promote racial diversity.
“The fact that the court took up this case really suggests that they wanted to drive the final nail in the coffin of affirmative action,” Davis says.
Urman notes that nine states have eliminated affirmative action policies since 1996.
“This is something public institutions have responded to before in large states, including California and Texas,” Urman says. “Some states have boosted outreach and recruiting, and others have pursued race-neutral plans like the Texas ‘top 10’ plan. But I do think that completely banning the use of race is going to 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 lacks the authority to forgive $400 billion in student loans. The program, offering up to $20,000 for millions of current and former students, has been put on hold.
“I am pretty sure that the court is going to say that Biden exceeded his authority under what’s called the HEROES Act,” says Urman, noting that the law (passed originally in 2002) ensures that people in the U.S. military aren’t penalized for student-loan debt while representing their country overseas.
Urman says the court is likely to reject Biden’s assertion that the HEROES Act enables him to forgive student-loan debt because of the COVID-19 pandemic, which the rates as a national emergency.
“You’ve got Biden on ‘60 Minutes’ saying, ‘The pandemic is over,’” Urman says. “I could imagine Justice [Samuel] Alito quoting that in a footnote, in a judicial form of trolling.”
Urman anticipates the Supreme Court will invoke the major questions doctrine to suggest that Biden ask Congress to pass a law that specifically addresses the student-debt crisis. But in polarized Washington, adds Urman, “Everyone knows that is zero-percent likely to happen.”
Merrill v. Milligan
The court will rule on two significant voting-rights cases. This one raises the question of whether the Voting Rights Act requires a second congressional district that is favorable to Black candidates to be created in Alabama, where the plaintiffs claim the political map has been gerrymandered to favor white candidates.
“In this case, I count six [conservative] votes to further limit the Voting Rights Act,” says Urman, noting that the court has consistently narrowed the act’s scope since John Roberts became chief justice in 2005.
Moore v. Harper
The other major voting-rights case will decide whether state legislatures can grant themselves the power to set election rules that violate state constitutions.
“The extreme view is there would be no judicial role in reviewing how states conduct their elections,” Urman says. “That would be one of the most consequential court rulings in history. It has the potential to upend American society. But I don’t think that will happen.
“I think the court will preserve a role for judicial review—but a less robust form than the challengers wanted.”
Brackeen v. Haaland
The Indian Child Welfare Act focuses on pairing Native children with Native families in the foster care or adoption system. The program’s future will be decided by the court.
“It’s similar to the affirmative action case in some respects,” Davis says. “One of the key questions is whether or not racial preferences are permissible under the equal protection clause.”
Davis is uncertain how the court will rule, based on questions raised by Justice Neil Gorsuch.
“There was a lot of recognition that not allowing some kind of preference would really undermine tribal sovereignty,” Davis says. “Gorsuch expressed his sympathy for the tribal position. He’s got a history of being solicitous of Indian tribes, even though that seems inconsistent with his overall conservative philosophy.”
303 Creative LLC v. Elenis
A graphic designer argues that she is being forced to create websites approving same-sex marriage by Colorado’s anti-discrimination law. Urman believes the conservative court will be sympathetic to her free-speech claim.
“One side will have you believe that it’s the equivalent of making artists paint something that they don’t want to paint,” Urman says. “And then the other side is saying, sorry, if you want to do business in this state, you have to follow our public accommodations law.
“The general principle that I heard at oral argument involves the more conservative justices saying, ‘Don’t we want people to be free to refuse a request when it comes to their morals and free expression?’” Urman says. “On the other side, when you are a business operating and open to the public in Colorado, that comes with obligations.”
For media inquiries, please contact Marirose Sartoretto at m.sartoretto@northeastern.edu or 617-373-5718.
