Is the Supreme Court Signaling an Affirmative End to Affirmative Action?

By Kelsey Weinman.

On January 24, 2022, the Supreme Court granted certiorari on two cases challenging affirmative action in college admissions: Students for Fair Admissions v. President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina. The Supreme Court has previously held that universities may use race in determining admissions, but petitioners are asking the court to reconsider.

Legal History of Affirmative Action in College Admissions

Affirmative action refers to policies that aim to increase representation of minority groups such as women and people of color. As part of the Civil Rights Movement in the 1960s, colleges began considering race as a factor in admissions in order to increase student diversity. White students were quick to call for a prohibition on racial considerations, but the Supreme Court refused to ban the practice.

However, in a 1978 case, Regents of the University of California v. Bakke, the Court did ban the use of racial quotas in admissions. Bakke, a white male applicant to the University of California at Davis’s medical school, sued after being rejected due to the school’s racial quota system which reserved 16 out of 100 spots for minority students. Bakke had a high admissions score, but by the time he applied, the only open spots left were those reserved for minority students. The Court found that UC Davis’s use of a racial quota violated the Fourteenth Amendment but did not outright prohibit consideration of race in admissions. The Court noted, “the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.”

In 2003, the Supreme Court once again evaluated its stance in Grutter v. Bollinger. There, the Court considered whether the University of Michigan Law School’s use of race in admissions violated either the Fourteenth Amendment or Title VI of the Civil Rights Act. The Court reaffirmed its position from Bakke that “student body diversity is a compelling state interest that can justify the use of race in university admission,” but it noted that race-conscious admissions programs must be narrowly tailored. Colleges may consider race as a “plus” in an applicant’s file but must consider that applicant with all other candidates. Additionally, applicants must be evaluated as an individual but not in a way that makes “race or ethnicity the defining feature” of a candidate’s application.

Notably, in Grutter, the Court noted that a “core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Consequently, the Court stated that “race-conscious admissions policies must be limited in time.” And it expected “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” It has only been 19 years, but the current Court might use this language as the basis for a judgment prohibiting affirmative action in college admissions.

The Current Challenge to Affirmative Action

The cases comprising the current challenge were both initiated by Students for Fair Admissions (SFFA), a nonprofit with the stated goal of overturning the allowance of race-conscious admissions. SFFA filed both cases on the same day in 2014, attacking both public and private institutions; the Harvard case challenges private institutions, and the UNC case challenges public ones. Notably, these cases differ from Bakke and Grutter in that the petitioners contend the admission policies discriminate not just against white applicants, but against Asian-American applicants too.

SFFA argues that the Supreme Court should overrule Grutter and hold that affirmative action is unlawful at private universities because Title VI forbids federal-funding recipients from using race in admissions, and the practice is unlawful at public institutions because it violates the Fourteenth Amendment.

SFFA also contends that Harvard’s existing admissions policy does not comply with existing precedent, arguing that current precedent only allows for race to enhance an application, not to detract from it.  Yet, Harvard penalizes Asian Americans solely based on race. Petitioners also assert that the district court improperly analyzed UNC’s admissions policy under strict scrutiny, arguing that the court improperly found that “UNC had no viable race-neutral alternatives.” Petitioners claim that an alternative does exist, but that the court nevertheless rejected it because it would cause “small changes in the admitted class,” including a slight drop in minority admissions and SAT scores.

Potential Outcomes

It is always possible that the Court will reject SFFA’s challenges and uphold existing precedent, but it seems unlikely given the Court’s current conservative majority. In a 2016 case, Fisher v University of Texas at Austin, the Court narrowly upheld race-conscious admissions at the University of Texas, finding the policy narrowly tailored “to achieve the educational benefits that flow from diversity.” Justices Kennedy, Ginsburg, Breyer, and Sotomayor formed the majority, while Chief Justice Roberts and Justices Thomas and Alito were in the minority. Justice Kagan recused herself. Justice Thomas said in his dissent that the use of race in admissions is “categorically prohibited by the Equal Protection Clause.” Further, Justice Alito, in a dissent Roberts and Thomas joined, argued that the University provided “no evidence that race-blind, holistic review would not achieve UT’s goals at least ‘about as well’ as UT’s race-based policy.”

Justice Thomas clearly believes that affirmative action is unconstitutional, and Roberts and Alito have indicated a preference for race-neutral policies. Additionally, since Fisher, the Court has changed to include reliable conservative leaning justices, Gorsuch, Kavanaugh, and Barrett, who have shown a willingness to overturn past precedent. Consequently, there is a reasonable possibility the Court is planning to end affirmative action.

Affirmative Action in Arizona

Ultimately, the Court’s ruling is unlikely to have a big impact in Arizona as Arizonans voted to ban affirmative action in 2010. The ban is codified in Article II, § 36, of the Arizona Constitution and states, “This state shall not grant preferential treatment to or discriminate against any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.” While the ban only affects public institutions, Arizona’s five private colleges combined enrollment only totals around 5,000 students—a considerably small amount compared to just ASU’s enrollment of 134,500.

Conclusion

Though the impact in Arizona is likely minimal, universities in other states could be left reconfiguring their admissions policies to race-neutral options; policies that could inevitably lead to lower enrollment figures for minority students. After California banned affirmative action in 1996, the number of minority students enrolled at public institutions dropped. However, some people argue that ending affirmative action could actually increase the number of minority graduates because students will be better matched academically to the schools they are accepted into and thus more likely to thrive. At the end of the day, it remains to be seen whether the Court will actually overturn Grutter, and what the effects of such a decision will be.

"Harvard University - Eliot House" by roger4336 is licensed under CC BY-SA 2.0

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By Kelsey Weinman

J.D. Candidate 2023

Kelsey is a 2L Staff Writer for the Arizona State Law Journal. Kelsey graduated from the Rochester Institute of Technology in 2017 with a Bachelor of Science degree in game design and development, and prior to law school spent three years working as a software engineer in the defense industry. She is active with the intellectual property student association and plans to practice intellectual property law.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.