Written by: Vedna Puskur
Edited by: Sean Tonra
Photographs by Adam Glanzman / Bloomberg / Getty
Following a summer full of controversy, the Supreme Court of the United States again has a tumultuous term as they begin their 2022-23 term. As part of a docket hearing appeals on the Indian Child Welfare Act and voting rights (MacDougall), the Supreme Court has two cases before them on affirmative action within higher education; Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. In both cases, the Supreme Court will decide whether the use of race-based affirmative action policies in college admissions is legal under the Constitution.
Affirmative action is defined as, “a set of procedures designed to; eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future,” (Cornell Law School). In the United States, affirmative action can find its origins in employment laws where the government had to take an active role in investigating discrimination in the workplace in the 1930s (Mansky). While Presidents Franklin D. Roosevelt and Dwight D. Eisenhower expanded policy on discrimination in the workplace, President John F. Kennedy formally used the term “affirmative action” in Executive Order 10925, ordering government contractors to address racial disparities amongst their hiring pool and the overall goal of “nondiscrimination” in the nation (Torres). However, it was not until Kennedy’s successor President Lyndon B. Johnson that affirmative action was introduced to the lexicon in its contemporary iteration. Title VI of the Civil Rights Act of 1964 prevented federal funding for discriminating programs; this applied widely to public and private universities. Johnson issued Executive Order 11246 in 1965, prohibiting government contractors from employment discrimination on the bases of race, color, religion, and national origin (University of California, Irvine). After this, colleges and universities across the country voluntarily adopted affirmative action policies in their admissions processes, to diversify their student population by increasing the number of minority and underrepresented populations admitted.
Before the Supreme Court agreed to hear the cases, the lower courts in both the Harvard and University of North Carolina (UNC) cases affirmed that neither university violated Title VI and the Fourteenth Amendment, granting equal protection to all. The two cases were originally consolidated when the Supreme Court agreed to hear the cases; but after the confirmation of Justice Ketanji Brown Jackson, who stated during her confirmation hearings that she would recuse herself from the Harvard case due to her previous role on a Harvard board, the Supreme Court agreed to hear the cases separately (de Vogue). The plaintiff in both cases, Students for Fair Admissions (SFFA), led by conservative anti-affirmative action strategist Edward Blum, is an organization that represents largely White and Asian Americans alleging that affirmative action policies in college admissions advantage African American and Hispanic applicants over themselves. The Harvard case alleges that Harvard discriminated against Asian American applicants by using an “Asian quota”; a conclusion derived from consistent Asian-American admission, despite having the best statistics like GPA or admissions tests across the board over other minority applicants. The UNC case alleges that their socioeconomic approach in recruiting first-generation and low-income students is equally discriminatory to White and Asian-American (Anderson).
Both cases aim to overturn the ruling of Grutter v. Bollinger (2003), which upheld the University of Michigan Law School admissions process of using race as just one of many factors in the acceptance of an applicant. The “holistic” approach has been strongly approved of by the Supreme Court, which held that the use of reserving spots for racial quotas at the University of California Medical School in Davis in Regents of the University of California v. Bakke (1978) and the points based-system used by the University of Michigan's undergraduate admissions office in Gratz v. Bollinger (2003) was unconstitutional (Cornell Law School). The use of a “holistic” approach, acknowledging several factors in admissions decisions, was again upheld by Fisher v. University of Texas (2016), holding that the University of Texas’s admissions use of race, among several other factors in the Personal Achievement Index portion of the application, was constitutional by meeting the “compelling interest” that the university had in seeking diversity under strict scrutiny (Cornell Law School).
The current challenges in front of the Supreme Court have frightening implications; the lack of affirmative action policies has been demonstrated to greatly reduce the diversity of college populations. In briefs filed by The University of California system and the University of Michigan, universities that are within the nine states that now ban the use of affirmative action, their goals of “achieving racial diversity is virtually impossible” (Saul). In 2021, the University of California, Berkeley only admitted 258 Black students, composing 3.7% of that year’s class, a 55% decline from when race-conscious admissions were still in place until 1996 (Torres), while the University of Michigan—Ann Arbor Black population was at 4% for the 2021 class, a decline from 7% before Michigan’s ban on affirmative action in 2006 (Saul). Written testimonies from students demonstrate the need for racial diversity on college campuses, with UNC senior Julia S. Clark stating, “There is never a time when race is not a factor for me” (Penley). On the other hand, Asian-American Calvin Yang, a sophomore at the University of California, Berkeley active in SFFA states that his denied admission from Harvard was based on “stereotypes about Asians” (Anderson). The two cases in front of a conservative Supreme Court appear to lean to prohibit the use of affirmative action in admissions; Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito previously dissented in the Fisher case, and are likely to do so again. With Justice Jackson recusing herself from the Harvard case and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett considered conservative, there is a strong possibility that affirmative action will overturn.
[The views expressed in this article are those of the author and the author alone; they do not necessarily represent the views of all members of the RULR Editorial Board and Rutgers University]
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