Upcoming Supreme Court Cases Could Put Affirmative Action on the Chopping Block

The Supreme Court of the United States will soon hear two cases that have the potential to permanently change the racial makeup of college classrooms.

This fall, the Supreme Court will hear oral arguments in cases against Harvard University and the University of North Carolina at Chapel Hill (UNC), which argue that the affirmative action policies at both schools are discriminatory.

The cases allege the universities break the law by looking at race, with a preference given to Indigenous, Black, and Latinx applicants — discriminating against white and Asian candidates.

Especially in the case against Harvard, race is being used as a wedge between people of color, claiming that Asian Americans are being sidelined from admittance. It argues that the university works to ensure a certain amount of diversity in each class, which penalizes Asian Americans who perform better than other communities of color.

These cases will be ruled on separately as Justice Ketanji Brown Jackson is a graduate of Harvard and a current member of the university’s Board of Overseers and said she will recuse herself from that case.

The Case Against Affirmative Action

Affirmative action has been controversial since its introduction. Educational institutions adopted it in the 1960s to diversify their student bodies, and since then the practice has been no stranger to litigation.

Students for Fair Admissions (SFFA), run by Edward Blum, a conservative legal strategist, is responsible for bringing both cases to the Supreme Court. Blum has committed his career to running cases against affirmative action and racial equity, and he took Fisher v. University of Texas to the Supreme Court in 2015. In that case, Abigail Fisher, a white woman, alleged she was unfairly rejected from the University of Texas at Austin because of race, but the court didn’t agree.

This was in line with previous rulings. In 2003’s Grutter v. Bollinger, a white woman claimed she was unfairly rejected from her university of choice because of race, and that the university discriminated against white people and violated the Fourteenth Amendment. In their ruling, the Supreme Court upheld considering race as a factor in deciding if a student gets accepted, highlighting the importance of student diversity.

“[It] recognized a diverse student body as a compelling interest, so considering race as one factor in a holistic process should be narrowly tailored to meeting that interest,” said Bayliss Fiddiman, the director of educational equity and senior counsel at the National Women’s Law Center.

Protecting Affirmative Action

Despite what conservative pundits claim in their talking points, race-conscious practices like affirmative action don’t mean students of color are immediately accepted into a university or that standards are lowered to admit people of a certain ethnicity. Instead, race is one factor of many taken into account for admissions in higher education.

Affirmative action is overwhelmingly supported by people across the U.S. Its backers include civil rights groups, legal professionals, and educational professionals and their unions. Even big business and tech companies, like Johnson & Johnson, Uber, Google, American Express, Apple, and Levi Strauss support the practice.

These companies and groups, alongside hundreds of individuals, alumni, organizations, trade unions, legal bodies, and advocacy groups have submitted amicus briefs asking SCOTUS in the Harvard and UNC cases to maintain the practice.

The conservative-leaning Supreme Court has already undone longstanding precedent in its latest term, overturning abortion rights. A ruling against affirmative action would overturn Grutter and implicate previous cases on affirmative action or education.

“The merits of this case have already been argued thoroughly. Affirmative action has been upheld for decades; that’s not what’s under debate,” said Sally Chen, the education equity program manager at Chinese for Affirmative Action. “SCOTUS is going to rule in the direction that it has been doing so consistently: conservative and disenfranchising a lot of fundamental rights. It’s disheartening seeing this as part of a broader trend of removing protections, considerations, and policies that address systemic racism and systemic oppression.”

The Impact of Overturning Affirmative Action

Overturning affirmative action would impact colleges, universities, and other institutions, including community and public colleges that use race as a factor in admission practices.

Depending on how the Supreme Court rules, these colleges could have to change their admission policies. Of 577 public colleges around the country, more than 100 of them take race into consideration, alongside the majority of the 100 largest private colleges and universities.

It could also change grants, scholarships, and other mechanisms to help students pay for schools that consider race. States could even pass legislation making sharing race as part of admissions illegal.

All these factors make many affirmative action advocates concerned that overturning race-conscious admissions will lead to a dramatic drop in enrollment of Black, Latinx, and Indigenous students, which would affect diversity in future workforces and representation in industries.

Previous bans on affirmative action showed a double-digit decrease in admissions of Black and Latinx students. Harvard found that, if overturned, their 2019 student body admissions would have had fewer Black and Latinx students. Eight states currently ban affirmative action, and research has found clear impacts in enrollment of BIPOC communities at selective colleges, especially in medical professions.

“When we wrote [our amicus brief], we thought about it from women of color, specifically the underrepresentation of women of color in certain fields of study and professions, like STEM. Studying [these fields] in undergrad and grad programs will translate into the workplace,” Fiddiman said.

Without race consciousness, higher education processes favor students with access to improve their schooling: tutors, better schools, and time to dedicate to schooling. This extrapolates across all communities of color.

“The biggest concern is that we live in a society where your racial background still influences your experience and at times the opportunities available for you,” Fiddiman said. “If we don’t consider race as one part of a holistic admissions process, we’ll leave out people who are incredibly intelligent, ambitious, and hard working who might not have had the right opportunities that more privileged classmates had.”

The Harvard case highlights the “model minority myth,” in which Asians outperform other people of color — a narrative used to pit Asians against other races. But Asian isn’t just one identity, and the concerns don’t reflect reality, especially for marginalized communities like Southeast Asians.

“On the facts of the case there’s no merit,” Chen explained. “But at the same time, even if there were, the solutions [Blum’s] calling for — removing race consideration at all — does not address any actual potential issues. It’s not representative of or aligned with what Asian American communities and families want and need.

“It’s a tool of white supremacy that is focused on creating this tension and punishing Black and brown students and creating a dichotomy to use the model minority myth to punish, discipline, and harm particularly Black and brown students and families.”

The consequences won’t stop in higher education. Other admission processes, like high schools or any race conscious practice of education enrollment, could be at risk. Advocates also fear that affinity groups, ethnic studies classes, and any race-specific space could be next. Outside of education, this precedent could be expanded into other areas, like employment, contracting, and even anti-bias training in the workplace.

And it’s not just race: overturning affirmative action could set precedent on other affirmative policies, like those for gender and sex.

The Supreme Court is set to discuss the cases in their second session this fall, which starts Oct. 31.

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