Analysis: Supreme Court Begins Hearing Affirmative Action Challenges And The Stakes Are Clear And High

There have been decades of pushback against the doctrine, but it’s now possible that diversity could see a collapse at major colleges.

On Monday (Oct. 31), the U.S. Supreme Court will hear opening arguments in two cases that challenge race-based admission in colleges and universities— a hotly debated topic for at least four decades.

When the justices hear the arguments pushing back against Harvard and the University of North Carolina, at stake is affirmative action as a practice not only in education but perhaps in other institutions like business and government employment.

Many experts predict, given the conservative majority of the current Supreme Court bench and its gutting of Roe v. Wade, affirmative action will be the next to fall. If it does, the landscape of college admissions will change dramatically, and many schools fear losing gains in diversity that have been hard-fought over the years.

Affirmative action in its current form was first used in 1961 referring to government contractors when President John F. Kennedy issued Executive Order 10925, stating: "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."

Since then, the concept of affirmative action has been applied to end discrimination in employment, increase diversity in federal, state, and municipal contracting and bring more diverse student bodies to campuses that had been predominantly white. However, particularly with schools, there have been multiple challenges over the years in education alone.

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In the 1978 Regents of the University of California v. Bakke case, the Supreme Court ruled that the use of “racial quotas” in admissions was unconstitutional, but using affirmative action to accept more minority students was not, in some cases, hindering but essentially upholding the doctrine.

Also, in the 2003 Gratz v. Bollinger case involving the University of Michigan, the court upheld the rights of universities to use affirmative action, ruling that the Equal Protection clause of the 14th Amendment doesn’t prohibit the school from using the doctrine of using race in its admissions decisions.

More recently, in 2016’s Fisher v. University of Texas the court ruled that the school’s use of race in its admissions process was lawful under the constitution and did not violate the Equal Protection clause. The court even suggested that the plaintiff’s argument was misguided.

So despite the challenges that universities and colleges have faced from opponents of affirmative action, they have continued policies designed to ensure that minority students have a fair shot at getting in. Furthermore, although arguments that emerged hold that affirmative action should be based on class rather than race, proponents generally feel that the doctrine should continue to revolve around race, at least for now.

Still, the two cases before the Supreme Court argue mainly the same points as past cases but with new characters on the stage.

In the Harvard case, a group called Students for Fair Admission accused the school of holding Asian-American students to a higher educational standard than it does African American or Hispanic students. “Harvard engages in racial balancing and ignores race-neutral alternatives also proves that Harvard does not use race as a last resort. All of this makes intervention that much more urgent,” the court filing for the plaintiff reads.

A Boston judge and later the 1st U.S. Circuit Court of Appeals backed Harvard in their argument that race can be used to create a more broad and diverse mix of students on campus. Harvard’s view of the 1978 Bakke case is shared by many as a successful application of affirmative action.

With the University of North Carolina case, the Students for Fair Admission group claims that the school discriminated against white and Asian-American applicants by favoring admitting Black, Hispanic and Native American students. “The question is not whether race-neutral alternatives will change an institution, or whether the university finds them painful or philosophically disagreeable. The question is whether race-neutral alternatives ‘could promote the substantial interest about as well and at tolerable administrative expense,’ ” the plaintiff says in its filing.

What’s at stake is whether or not minority presence at American universities drops significantly, which is certainly a possibility. An excellent example is California’s passage of Proposition 209 in 1996, spearheaded by Ward Connerly, an African American who had once served as a University of California Regent. It banned the use of race, sex, and ethnicity in the state’s governmental employment, education, and contracting. The result was a collapse of diversity on two highly competitive U-C campuses.

According to The Los Angeles Times, in 1998 the first year the ban took effect, Black and Latino representation dropped by nearly half at UCLA and U-C Berkeley. The California State University system didn’t experience close to the decline the U-C system did, but that’s attributed to its wider reach and other factors like better affordability.

As for what the nation has gotten out of affirmative action is one significant thing: more diversity in college enrollment. According to figures from the Education Data Initiative, nonwhite student enrollment increased by more than 185 percent between 1976 and 2018. Between 1976 and 2020, Black enrollment increased from 9.3 percent to 12.5 percent.

As the thinking goes, increased education for minorities means more qualifications for the workforce and higher paying jobs and thus increased diversity in the corporate sector. Without affirmative action, the fear is that the diversity pipeline could be hurt with fewer people of color coming out of the nation’s elite schools. 

An amicus brief filed on behalf of  80 large companies like Google, Apple and Jet Blue expressed as much. The brief says in part that diversity initiatives at colleges “depend on university admissions programs that lead to graduates educated in racially and ethnically diverse environments. Only in this way can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”

People watching the two cases believe that the result of the court ruling in favor of Students for Fair Admission in one or both could have a similar impact on public universities nationwide. Many amicus briefs filed with the court concerning the cases reflect this sentiment.

In one, submitted by the Lawyers Committee for Civil Rights Under Law, a nonprofit whose goal is to combat racial discrimination, the organization argued that Harvard – whose undergraduate and graduate body is 39.7% White, 13.7% Asian, 9.46% Hispanic, and 6.56% Black, according to DataUSA, could see real damage to its student population. “Forbidding any consideration of race in the admissions process would cause a precipitous drop in the racial diversity of Harvard’s students,” the brief reads.

Another, submitted by the Washington Bar Association and the Women’s Bar Association of the District of Columbia, argues that eliminating affirmative action will affect the nation as a whole. “To assume that the use of race in admissions is no longer necessary is to ignore the reality of today’s America. Structural racism infects the whole of American society; racial inequality along economic, social, professional, and educational lines is still quite substantial. Empirical evidence shows that even with gains made by race-sensitive admissions policies, the effects of centuries of cruel discrimination and segregation have not been sufficiently mitigated.”

As the justices hear the case, universities and colleges will undoubtedly watch intently, and perhaps nervously as to what will happen and how they will ensure a diverse student body if Harvard and UNC do not win. With reported increases in the student populations at HBCUs, that could be one impact as many students on those campuses say they chose those schools because the criteria of cases like these give them the incentive to go to a space for learning where they can be more comfortable.

Surely a benefit for Black colleges, but it also could potentially mean schools ranging from the Ivy League to public colleges could be rendered much, much Whiter.

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