The Supreme Court May Soon Overturn Affirmative Action
On October 31st, 2022, the Supreme Court heard arguments challenging the validity of race-conscious admissions programs at Harvard University and the University of North Carolina. Two lawyers represented Students for Fair Admissions (the plaintiffs), while three lawyers represented the two universities (the defendants). Depending on the outcome, the court’s decision could drastically change college admissions soon. So, what is race-conscious affirmative action? How has the Supreme Court ruled on similar cases in the past, and what makes Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina any different?
Affirmative action policies seek to increase the representation of women, minorities, and those with disabilities in the workplace and higher education. These policies grew out of the civil rights movement and first appeared in 1961 with the creation of the Committee on Equal Employment Opportunity under President John F. Kennedy. Presidents Lyndon B. Johnson and Richard Nixon further established affirmative action with executive orders aimed at ending racial discrimination during employment. Soon after, colleges adopted similar policies to end racial discrimination by crafting admission processes meant to increase the number of Black and minority applicants [1].
However, the constitutionality of affirmative action programs in higher education was not established until the Regents of the University of v. Bakke (1978). Allan Bakke, a white man, sued UC Davis after being denied admission to their medical school despite him having higher standardized test scores than all admitted minority students. The court found UC Davis’ quota system, meant to address the effects of racial discrimination, unconstitutional. Nevertheless, Justice Lewis F. Powell Jr. identified diversity as a compelling state interest because of the associated educational benefits. One's race could therefore be considered, so long as it was one of many factors; it could be considered a ‘plus’ factor according to Powell [2].
A pair of decisions, Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003) would have a further impact on affirmative action in higher education and effectively set the modern precedent. In both decisions, a white individual was suing the University of Michigan after being denied admission. In the Gratz decision, the court found Michigan’s consideration of race unconstitutional because they did not consider it on an individualized basis; the threshold of admission was 100 points on a 150-point scale, and an automatic 20 points were granted to all minority applicants [3]. However, in the Grutter case, affirmative action was upheld because Michigan Law had considered race on an individualized basis in a narrowly tailored way. In Justice Sandra Day O’Connor’s opinion, she stated, “…the Law School’s race-conscious admissions program does not unduly harm nonminority applicants,” but expected that 25 years in the future, “the use of racial preferences [would] no longer be necessary” [4].
The most recent landmark Supreme Court decisions on race-conscious affirmative action were Fisher v. University of Texas (2013 and 2016). Abigail Fisher was denied admission and subsequently sued the university. At the time, Texas automatically admitted the top 10% of each graduating class from Texas high schools, considering a plethora of factors for the remaining spots for in-state applicants, including race. In 2013, because the lower court failed to follow procedure—following a strict scrutiny examination—the case was sent back to the lower court [5]. The case returned to the Supreme Court in 2016 which found Texas’ admissions program constitutional [6].
Race-conscious affirmative action has been upheld because it appears to work. Although the effects of affirmative action are minimal for most colleges and universities, it has been shown that beneficial effects are positively correlated with school quality. Researchers found especially “substantial effects of affirmative action on [the] admission of minorities at elite schools,” whose number would fall drastically in the absence of affirmative action [7]. Even with the significant impact of affirmative action on the number of minorities admitted, there is still minimal “displacement of white applicants by minorities… because blacks and Hispanics still account for only 10-15% of students at these schools” [7]. Affirmative action has once again entered the spotlight, but this time may very well be different.
After five hours of arguments on Monday, the conservative justices appeared skeptical that race-conscious policies are effective at closing racial gaps in higher education. “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” Justice Clarence Thomas said. “It seems to mean everything for everyone” [8]. Justices Brett Kavanaugh and Amy Coney Barrett referenced Grutter v. Bollinger and asked whether racial considerations would ever have an endpoint. “When does it end? When is your sunset? When will you know?” Justice Barrett asked the defendants. “Grutter says this is dangerous and it has to have an end point” [9].
The liberal bloc put up a spirited defense of affirmative action, detailing why diversity is important and how race-conscious admissions contribute to a more equitable playing field. “I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are, as people in all of our variety,” said Justice Elena Kagan [9]. The U.S. solicitor general who argued on behalf of the universities said, “A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions,” echoing what the research shows [8].
The six conservative justices maintain that Harvard and UNC’s current admission policies unconstitutionally discriminate against applicants on the grounds of race and that overturning affirmative action will not negatively affect diversity or the admission of minorities. The Supreme Court will release a final decision in June, but because of the conservative majority, many of whom have made their doubts about race-conscious policies known, they are expected to reverse decades of precedent and overturn affirmative action.
If the court overturns race-conscious affirmative action, the policy could still be codified into law by the legislature. However, this is unlikely given how unpopular race-based affirmative action programs in higher education are with the public. A survey from the Pew Research Center found that a majority of Americans (73%), say race should not play a factor in college admissions, followed by 19% who say it should have a minor role and 7% saying it should have a major role [10]. If the court decides that considering race in admissions is unconstitutional, theirs may be the final say on the matter.
References
Carlton, G. (2022, October 4). A history of affirmative action in Higher ed: BestColleges. BestColleges.com. Retrieved November 2, 2022, from https://www.bestcolleges.com/news/analysis/2020/08/10/history-affirmative-action-college/
Regents of the University of California v. Bakke. (n.d.). Oyez. Retrieved November 2, 2022, from https://www.oyez.org/cases/1979/76-811
Gratz v. Bollinger. (n.d.). Oyez. Retrieved November 2, 2022, from https://www.oyez.org/cases/2002/02-516
Grutter v. Bollinger. (n.d.). Oyez. Retrieved November 2, 2022, from https://www.oyez.org/cases/2002/02-241
Fisher v. University of Texas. (n.d.). Oyez. Retrieved November 2, 2022, from https://www.oyez.org/cases/2012/11-345
Fisher v. University of Texas. (n.d.). Oyez. Retrieved November 2, 2022, from https://www.oyez.org/cases/2015/14-981
Holzer, H. J., & Neumark, D. (2006). Affirmative Action: What Do We Know? Journal of Policy Analysis and Management, 25(2), 463–490. http://www.jstor.org/stable/30162729
Liptak, A. (2022, November 1). A diverse Supreme Court questions the value of diversity. The New York Times. Retrieved November 2, 2022, from https://www.nytimes.com/2022/11/01/us/supreme-court-affirmative-action-diversity.html
Quinn, M. (2022, November 1). "when does it end?": Supreme Court weighs nixing affirmative action in higher education. CBS News. Retrieved November 2, 2022, from https://www.cbsnews.com/live-updates/supreme-court-affirmative-action-cases-college-admissions-north-carolina-harvard/
Gómez, V. (2022, November 2). U.S. public continues to view grades, test scores as top factors in college admissions. Pew Research Center. Retrieved November 2, 2022, from https://www.pewresearch.org/fact-tank/2022/04/26/u-s-public-continues-to-view-grades-test-scores-as-top-factors-in-college-admissions/
