Inside the Affirmative Action Cases Before SCOTUS
This week, the Supreme Court will hear arguments in two related cases that are likely to drastically transform how admissions officers consider race as a factor in college applications, and possibly ban its consideration altogether.
The Court has supported the use of race in admissions for nearly 50 years, but what’s different now is its new conservative supermajority. Out of nine justices, six are now conservative, and with Chief Justice John Roberts’s acknowledgment of his preference for race-neutral admissions policies, a sweeping ban on affirmative action may be on the horizon.
The immediate question in the two lawsuits now pending before the Supreme Court — Students for Fair Admissions v. President & Fellows of Harvard College and Students For Fair Admissions v. University of North Carolina — is whether the Supreme Court should overrule Grutter v. Bollinger, the 2003 case that held that race may play a limited role in college admissions. In practice, race often functions as a tiebreaker when universities are deciding among many well-qualified students.
The overarching stakes in these cases, however, are much broader. The plaintiffs advocate a “colorblind” theory of the Constitution that would prohibit the government from considering race in virtually any context, including efforts to voluntarily integrate racially segregated grade schools and other institutions. Decisions such as Grutter have given the government limited authority to foster racial diversity. Though decisions in each case most likely won’t be released until the end of the court’s term in spring 2023, the Harvard and UNC cases are likely to eliminate that authority altogether.
The case against Harvard, a private university, contends that the school’s race-conscious selection process discriminates against Asian American applicants in violation of Title VI of the Civil Rights Act of 1964, so that they are less likely to be admitted than similarly qualified candidates who are Black, Hispanic, or white. The case against UNC, North Carolina’s top public university, claims that the unfair use of race among other admissions criteria gives excessive preference to applicants of certain underrepresented groups, discriminating against Asian and white students in the process. The plaintiff in that case is arguing that the practice violates both Title VI and the guarantee of equal protection under the 14th Amendment of the US Constitution. Both cases argue that the schools ignore race-neutral alternatives that might help them achieve their diversity goals.
Students For Fair Admissions, spearheaded by conservative legal strategist and former stockbroker Edward Blum, filed both lawsuits in 2014. Blum isn’t actually a student: He’s aided by millions in funding from conservative donors, and he’s known for recruiting plaintiffs to challenge race-based policies he deems unfair. Since the early 1990s, Blum has filed more than two dozen lawsuits against affirmative action practices and voting rights legislation.
Affirmative action has been used for more than half a century by colleges and universities, initially to encourage the participation of historically marginalized groups and mitigate the effects of decades of segregation by university systems. Since the landmark Regents of the University of California v. Bakke case in 1978, the Supreme Court has repeatedly held that such programs can be used as a tool to foster diversity among a university’s student body and that an applicant’s race or ethnic background could be deemed a plus when deciding between applicants who are similarly qualified. The court determined that students from underrepresented racial backgrounds could “promote beneficial educational pluralism” that benefits all students — a goal compelling enough to the justices that they have continued its use. Since Bakke, the court has upheld affirmative action in admissions despite multiple challenges, including Fisher v. University of Texas, decided as recently as 2016, in which Abigail N. Fisher, a white woman, claimed that she was rejected from the University of Texas at Austin because of preferences given to applicants of color.
Although decades of research support the conclusion that more diverse campuses benefit all students, the premise of the “colorblindness” theory is that race-conscious policies are so inherently misguided that they cannot be sustained regardless of their benefits. This theory has been around for a very long time — President Andrew Johnson, the white supremacist who spent much of his time in office frustrating Reconstruction, vetoed laws seeking to lift up enslaved people who had been freed because he claimed they would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.” More recently, conservatives including President Ronald Reagan have made similar attacks on affirmative action — often describing such programs as “reverse discrimination.”