Harvard affirmative action case: Supreme Court must defend color-blind Constitution

On Monday, the Supreme Court will hear oral argument in two cases that raise one of this term’s most contentious issues: May universities use race as a factor in admitting students?  

The two institutions involved, Harvard and the University of North Carolina, are respectively private and state universities. The cases arise under Title VI of the Civil Rights Act of 1964, an antidiscrimination provision that applies to private universities that accept federal financial assistance, and the 14th Amendment’s equal protection clause. 

The court has dealt with the issue of affirmative action for decades. In the context of student admissions, its precedents have been muddled and damaging. In Regents of the University of California v. Bakke (1978), the justices were too divided for a majority to agree on a coherent standard, so Justice Lewis Powell’s view that a "holistic" admissions policy would be permissible if it advanced "diversity" in the student body prevailed.