OFM Breaking: December 2022 Issue

Supreme Court to Vote on Affirmative Action in Colleges and Universities

The SCOTUS began hearing arguments both for and against affirmative action last month, in a case regarding Harvard Law School allegedly discriminating against Asian American applicants, and a separate but similar case from the University of North Carolina. Affirmative action has been used as an admissions policy in colleges and universities in the U.S. since 1964, but it hasn’t always looked the way it does today. 

In its original form, affirmative action was a way for colleges and universities to give special consideration to racial minorities in an effort to undo past discrimination in admissions. Often, higher education institutions would set aside a specific number of seats for minority students in the form of diversity quotas. However, in 1978, a SCOTUS ruling on the case University of California v. Bakke outlawed the use of quotas to improve campus diversity. 

In a 2003 ruling on the case of Grutter v. Bollinger, the Supreme Court ruled that the only way colleges and universities may now consider an applicants’ race is if it’s a factor of another factor. For example, if a student writes their application essay about overcoming racial discrimination or the hardships of being an immigrant, their race maybe considered then. Furthermore, applicants who are involved in extracurricular activities involving their race, such as Black Student Unions or other culture clubs, may also be considered based on affirmative action. 

The previous amendments to affirmative action changed the aim of the policy from trying to correct past discrimination to what it is today: a tool to diversify college campuses. There have been several studies to come out of the last decade that suggest having a more diverse student body is not just beneficial to minority students, but to everyone. A 2016 study published by The Century Foundation found that diversity in education promotes critical thinking and problem solving. 

The latest Supreme Court case is looking at two colleges, Harvard and the University of North Carolina, for discriminating against Asian Americans (and in the UNC case, white Americans) and capping their admission numbers. The lower courts in both cases found that neither school was misusing affirmative action to racially discriminate; however, the conservative-majority SCOTUS will be harder to convince. 

Lawyers from both schools attempted to argue for affirmative action in early November, but the conservative-packed court remained skeptical. Justice Amy Coney Barrett cited the court’s majority opinion in the 2003 Grutter case which suggested that affirmative action eventually be terminated, perhaps in the next 25 years. Should the court follow its predecessor’s advice, affirmative action would come to an end in 2028. 

Conservatives argue that after a certain amount of time utilizing affirmative action, schools should be able to say that they have met their “diversity goals” and begin to terminate the admissions policy. However, Justice Sonia Sotomayor brought forth evidence from schools that have stopped using affirmative action and have begun seeing less diversified student bodies since. 

“We have nine states who have tried it, and in each of them, as I mentioned earlier, white admissions have either remained the same or increased. And clearly, in some institutions, the numbers for underrepresented groups have fallen dramatically,” Justice Sotomayor says during the hearing. 

Throughout all the arguments for or against affirmative action, one critical piece of the puzzle seems to be left unspoken about. Our public education system in this country is still highly segregated. Though students of any race or ethnicity may attend public schools within their district, socio-economic factors keep minority students in schools with less funding and fewer resources. Even forgetting past discrimination and familial wealth discrepancies, white students are still more likely to have advantages in their education leading up to college than that of their Black and Latinx counterparts. 

Should the Supreme Court ban colleges and universities from using affirmative action in their admissions process, schools will be forced to introduce a truly colorblind consideration for applicants. Will topics of race and immigration be banned in future college essays; will students last names be redacted from their applications as they are being considered? Our society is not colorblind, to take race out of the equation of college admissions is to ignore countless systems of racial discrimination within our society. Though affirmative action has helped diversify colleges and universities over the last 58 years, that may soon come to an end.