That's Affirmative: Affirmative action is illegal, let's talk about it

College admissions season is known to be a stressful and anxiety-inducing period for high school seniors across the country. Those applying to elite universities, such as Ivy League institutions, often fret over whether the culmination of years of academic rigor and extracurricular involvement will get them accepted into their dream school. Most don’t think about the minor step of checking off the box(es) that signifies their racial and ethnic identity. However, after decades of lawsuits and legal debate, yesterday the Supreme Court of the United States (SCOTUS) made the landmark decision to abolish affirmative action. But what exactly is affirmative action? How did it start, and what led to its abolishment?

Affirmative action in higher education generally refers to admissions policies aiming to increase the number of minority, notably Black and Hispanic, students on campus. This often stems from a desire to enhance the learning environment for students through more diverse backgrounds, cultures, and worldviews. Many also view affirmative action as a way to provide opportunities to underserved students after centuries of racial injustice and discrimination. Whether or not racial identity holds a fair role in admissions decisions is the very center of the cases the court ruled on; Students for Fair Admissions v. President and Fellows of Harvard College and  Students for Fair Admissions v. the University of North Carolina. 

Yesterday’s rulings were 6-2 (Associate Justice Ketanji Brown Jackson did not participate in the Harvard case since she served on one of Harvard’s governing boards for several years) and 6-3 respectively. This ultimately showcased a clear difference of opinion between the conservative majority and the liberal dissent. 

Many progressives worry that the removal of affirmative action whilst other admissions preferences such as legacy, athletics, donors, and special recommendations still exist will dramatically reduce minority enrollment. Researchers at Georgetown ran simulations that found the removal of affirmative actions dramatically decreased ethnic diversity if fundamental changes aren’t made to selective admissions processes. California banned affirmative action in 1996 and in 2006 only 96 students in UCLA’s freshman class of nearly 5,000 were black. 

However, conservatives say merit should be the major factor and race should not affect whether or not a student is accepted. Many conservative groups say affirmative action negatively impacts White and Asian students. A prime example is public concerns that Asian applicants are actively being rejected from elite universities on no other grounds except their racial identity, especially at Harvard. Between 1995 to 2013 only 8.1% of Asian American applicants were accepted into Harvard. This is lower than the percentages for White, Black, and Hispanic students despite Asian American applicants having higher averages for standardized test scores. Whether or not each side’s claims are legitimate has been on the nation’s mind for decades. 

If affirmative action has been used in selective schools’ admissions processes for decades, why is the SCOTUS ruling happening only now? In reality, this isn’t true. Yesterday’s rulings were simply the latest case in a lengthy history of legal decisions regarding affirmative action. While the extensive history is worth an essay, the SCOTUS’s publishing of the case totals 237 pages alone, I’ve only included three major cases regarding affirmative action in higher education.

Regents of the University of California v. Bakke

In 1978 SCOTUS ruled that the University of California at Davis medical school’s practice of setting aside 16% of spots for minority students violated Title VI of the 1964 Civil Rights Act. This is because Title VI prohibits racial discrimination by federally funded programs. Justice Powell, the lone center justice whose vote was the swing one, wrote in his statement that creating racially diverse educational environments was a compelling state interest. While the admissions practice was struck down, the usage of race in college admissions wasn’t made outright illegal. Racial identity could still be a factor for admissions as long as it was considered as one of several categories.

Hopwood v. Texas

In 1996 the Fifth Circuit dismissed Powell’s opinions regarding the implications of Regents of the University of California v. Blake. They found that the University of Texas at Austin law school’s desire for diversity wasn’t a strong enough argument to justify affirmative action. The ruling effectively banned race from being considered for college admissions in Louisana, Texas, and Mississippi. However, in the following years, various courts presented mixed results showcasing the widespread disagreements on the legality of affirmative action.

Abigail Fisher v. the University of Texas at Austin

2013 saw another major victory for affirmative action supporters. SCOTUS reaffirmed Justice Powell’s previous opinion and saw affirmative action as a means to enrich an educational space through diverse student bodies. However, the case established further public and legal scrutiny of affirmative action. It also named the need for race to be “necessary…to the accomplishment of its purpose” to be used as an admissions factor.

With the latest decision, any change or reversal is unlikely in the near future, especially since SCOTUS currently has six conservative-leaning judges, even with Chief Justice Roberts being more center, swing votes are practically non-existent. Yesterday’s ruling will continue to please conservatives and upset progressives. Depending on how colleges handle the ruling, future SCOTUS justices’ political affiliations, and national political interests we may not see another major change to affirmative action’s legality for quite some time. 

In the meantime, I highly recommend researching more on the topic. This blog only highlighted three cases in a long list of federal and state rulings regarding affirmative action, and something tells me the subject will not die down soon. Especially for our generation as we represent almost all undergraduate and high school students, the immediate aftermath of yesterday’s ruling will fall on us.