UNC's Court Case To Defend Affirmative Action Has Wrapped. What's Behind The Case?

Nov 19, 2020

Credit Dave DeWitt / WUNC

Attorneys for UNC Chapel Hill have been in court for the past two weeks to defend the university's race-conscious admissions practices. The plaintiff suing UNC is the advocacy group Students for Fair Admissions. The group has pursued several lawsuits opposing affirmative action at selective universities across the country. The court trial has concluded and U.S. District Court Judge Loretta Biggs will issue her opinion sometime in the coming months.

WUNC education reporter Liz Schlemmer has been following the case and gave this debrief with editor Dave DeWitt.

The plaintiff alleges that UNC Chapel Hill's admissions practices are not legal. What is allowed and what is not allowed when it comes to affirmative action in college admissions?

The Supreme Court has ruled on affirmative action as recently as 2016 and they set certain guidelines for considering race in admissions. Any use of race has to be narrowly tailored. It can’t be formulaic, you can't award points to applicants for being an underrepresented minority for example. Here’s David Hinojosa, an attorney who represents students, defending UNC’s practices:

"You're not allowed to have race as a predominant factor, you're not allowed to have quotas, you're not allowed to racially balance and in UNC's case, [the] plaintiff isn't alleging that they have a quota," Hinojosa said. "The plaintiff does allege that they're using it as a predominant factor."

UNC says race is something that might tip the scale for an otherwise qualified candidate, but that it's not a predominant factor, and they’re not doing anything outside the law.

UNC admissions staff also say they use some recruiting methods that leave race out and focus on socioeconomic status or where a student lives and goes to school, but that those so-called "race neutral" methods are not enough to admit a diverse, high-quality class.

The plaintiff, Students For Fair Admissions, has filed and so far lost two other lawsuits against affirmative action policies at Harvard and University of Texas at Austin. What’s their aim, what are they about?

When I asked their founder Edward Blum about their mission, he first pointed to public opinion. There’s a Pew Research Center survey that reports 73% of Americans don’t think race should be a factor in college admissions, including a majority of Hispanic and Black respondents.

This group’s mission is to end the use of race in college admissions nationwide. That’s a pretty lofty goal, and their strategy has been filing a series of lawsuits against the use of race at selective colleges.

Here's the founder of Students For Fair Admissions, Edward Blum:

"Because the mission of students for fair admissions is to end the use of race and ethnicity in college admissions, the only court that can render that opinion is the US Supreme Court. So it is our hope that one of our cases will eventually be taken up by the US Supreme Court, and the justices will strike down this divisive and polarizing part of students application process."

Blum says he’s prepared to appeal all of these cases until he gets to the Supreme Court again. The makeup of the court has changed since another of SFFA’s cases went to the Supreme Court in 2016. The court sided with the University of Texas at Austin in that case, but two of the justices who were in the majority have since been replaced by Trump appointees.

So why did Students for Fair Admissions file a suit against UNC Chapel Hill?

UNC Chapel Hill filed an amicus brief proactively, on its own, opposing Students For Fair Admissions in its case against the University of Texas at Austin. In their brief, UNC explained why one race-neutral alternative in Texas wouldn’t work for them.

The Texas legislature passed a law where students in the top 10% of their high school class could get automatic admission to in-state public universities. UNC Chapel Hill says they looked at that method, and while it would slightly increase their diversity, it would also lower the academic quality of their students, especially their SAT scores.

Edward Blum argues UNC is prioritizing its reputation, based on measures like SAT scores, over using more race-neutral admissions methods.

"That was quite a bullseye that UNC painted on themselves," Blum said. "And that is, you know, one of the key reasons that Students for Fair Admissions targeted UNC in this litigation."

What kinds of witnesses have testified in the trial?

Students for Fair Admissions has two main expert witnesses focused on statistics. Peter Arcidiacono, a Duke economics professor, analyzed UNC's admission data to quantify the advantage an African American or Latino candidate has over a white or Asian American student, if you focus on their GPA and standardized test scores.

UNC Chapel Hill's witnesses try to show that their admissions process is holistic, that it looks at the whole student. Their main witnesses are admissions staff and an economist from Stanford, Caroline Hoxby, who gives her own analysis. She says it's artificial to only focus an analysis on GPA and test scores, because the admissions department considers many other student characteristics. Her analysis found UNC's use of race is not formulaic.

Then there are intervenors in the case. These are UNC Chapel Hill students, at this point recent alumni, represented by civil rights law firms. Their purpose is to show the history of segregation and current conditions for students of color.

Their attorney David Hinojosa says their perspective is critical to understanding what UNC's practices really mean for students, and he notes that Student For Fair Admissions offered no similar witnesses:


"I will tell you also that it speaks volumes that no students testified on the side of Students for Fair Admissions. You have two experts, no fact witnesses."

What kinds of testimony did the students give?

There were several recurring themes in the testimonies of recent UNC Chapel Hill alumni. Laura Ornelas, a Latina student from Chapel Hill, spoke about the difficulty of navigating the college application process as a first generation student whose parents had not attended college, compared to her more advantaged classmates.

She and other witnesses spoke about their race or ethnicity being a central part of their identity and an important part of understanding them as a student. Several praised the diversity of students they met at UNC Chapel Hill, but said they wished there were more students of color.

Black alumni who testified recalled feeling burdened to be a representative for their race in class when they found themselves to be the only student of color in a particular classroom. One message from their testimony is that there's more work to be done when it comes to diversifying UNC Chapel Hill.

The closing arguments have wrapped. What happens next?

Now we wait. The judge will issue an opinion in the next few months. Blum is prepared to appeal if he loses and the case would go to an appellate court. Just a week ago, Students For Fair Admissions lost its appeal in a case against Harvard, so that could now be considered by the Supreme Court – if the Supreme Court chooses to take it up.