Originally, the two cases concerning policies out of Harvard and the University of North Carolina were consolidated so that they would be argued together. But after Jackson said during her confirmation hearing that she would recuse herself from the Harvard dispute because she served on Harvard’s board of overseers, the court decoupled the cases.
Now, all nine justices will hear the North Carolina dispute at 10 am ET on October 31, and then around an hour later eight will sit for the Harvard case.
Lower US courts have ruled in favor of Harvard and the University of North Carolina, holding that the programs used race in a sufficiently limited way to fulfill compelling interests in diversity.
The challenges are being spearheaded by conservative activist Edwin Blum. The Harvard challenge is brought under Title VI of the 1964 Civil Rights Act, which prohibits schools receiving federal funds from discriminating based on race. The UNC lawsuit similarly claims Title VI grounds, as well as a violation of the 14th Amendment’s guarantee of equal protection of the law, which covers state institutions.
In the last several weeks, so-called “friend of the court” briefs have flooded the court’s docket from civil rights groups, states, educational institutions and business leaders.
The Department of Justice urged the justices to rule in favor of the school policies and uphold precedent. “This court has repeatedly held that although all racial classifications are subject to strict scrutiny, consideration of race is permissible if it is narrowly tailored to serve a compelling interest,” Solicitor General Elizabeth Prelogar said in court papers.