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  • Isabel Kagoo

The US Supreme Court's Case Against Affirmative Action

On October 31, 2022, the U.S. Supreme Court heard oral arguments on whether to uphold universities’ ability to consider race in college admissions via affirmative action in two cases: Students for Fair Admissions v. President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina. Although both cases were argued separately, the core arguments boil down to two questions: what constitutes racial discrimination in college admissions, and does affirmative action violate the 14th Amendment’s guarantee to equal protection of the law? In the University of North Carolina case, plaintiffs argued that the university gave preference to Black, Hispanic, and Indigenous applicants and therefore discriminated against White and Asian applicants. The University of North Carolina has stated that its admissions policies, specifically the affirmative action program, fostered diversity and were lawful under existing Supreme Court precedents. While the case against Harvard is similar, the plaintiffs also accused the university of discriminating against Asian Americans by using subjective standards in their admissions criteria. Both cases were brought forward by conservative activist Edward Blum and his organization Students for Fair Admissions (SFFA). Blum and SFFA have organized numerous lawsuits challenging affirmative action and race-conscious admission policies, several of which have been argued before the Supreme Court (e.g. Fisher v. University of Texas). They argue that it is not legal within the US constitution to use race as a factor for college admissions, and call for existing Supreme Court precedents to be overturned.


What is Affirmative Action?


Affirmative action programs seek to address racial discrimination by recognizing that underrepresented students have historically been denied access to higher education and allow admission teams to consider race in the admissions process. Race-conscious admission practices help create a diverse student body that is beneficial to all students and faculty. Elizabeth B. Prelogar, the U.S. solicitor general, argued in support of the universities in both cases by stating, “When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens and better leaders.”


What Legal Rights Do Universities Have in Considering Race in the Admissions Process?


The Supreme Court’s precedent on affirmative action was first set following a 2003 decision in which the Court endorsed holistic admissions programs that consider race as a factor. In Fisher v. University of Texas (2016), the Court upheld that race could continue to be considered a factor in ensuring student diversity, and the majority argued that universities should be given more liberties when devising their admission policies. As mentioned previously, a central topic of debate is whether affirmative action violates the 14th Amendment's guarantee of equal protection of the law. Blum argued that the Equal Protection Clause within the Constitution coupled with existing civil rights legislation “forbids the consideration of race in higher education." However, it can be argued that a more holistic admissions process centered around student body diversity is within the university’s freedom to select students. Furthermore, race-conscious admission programs further the values of equal protection under the Constitution by helping to diminish stereotypes, promoting diversity on college campuses, and improving the ability of students of all races and backgrounds to participate in academia.


What’s At Stake if the Supreme Court Moves to Block Race-conscious Admissions Policies?


During the questioning, the court’s six conservative justices, who hold a majority, expressed skepticism regarding the need for affirmative action programs. While the decision has yet to be made, many believe that the court will rule against the universities and overturn decades of precedent. While this appears to be a bold move, it is important to note that the conservative supermajority has previously gutted decades of precedent, as seen in its decision in June to eliminate the constitutional right to abortion, and does not seem to have qualms about divisive rulings.


Furthermore, the conservative supermajority’s desire to overturn stable and well-established precedents not only threatens the stability of the law but also the Court’s own legitimacy.

Additionally, it is widely held that ending affirmative action would result in a significant decrease in the number of underrepresented students, specifically Black and Latino students, being admitted to top universities and a significant increase in the number of white and Asian students. A similar effect would be seen in admissions to selective primary and secondary public schools. A decision outlawing race-conscious admission policies could also have ramifications on equity and diversity within the workplace as government programs that address discrimination, racial equity, the racial wealth gap, and more would be jeopardized. Therefore, it is evident that the outcome of this case could have long-term, pervasive effects on all levels of academia and the workplace as a decision against affirmative action would be a clear indication of the declining social value of diversity. It would also demonstrate a changing dynamic within the Supreme Court, specifically the majority’s ambivalence to overturning precedent in divisive cases.



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