Initially, the two cases involving policies outside Harvard and the University of North Carolina were consolidated to be heard together. But after Jackson said during her confirmation hearing that she would recuse herself from the Harvard controversy because she served on Harvard’s board of trustees, the court severed the cases.
Now, all nine justices will hear the North Carolina case at 10 a.m. ET on Oct. 31, and then about an hour later eight will appear 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 narrow enough way to fulfill compelling diversity interests.
The challenges are under the auspices of conservative activist Edwin Blum. Harvard’s challenge falls under Title VI of the Civil Rights Act of 1964, which prohibits schools that receive federal funds from discriminating on the basis of race. UNC’s lawsuit similarly alleges 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 recent weeks, so-called “friend of the court” cases have flooded the court docket from civil rights groups, states, educational institutions and business leaders.
The Justice Department urged the justices to rule in favor of the school’s policies and uphold the 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.