Affirmative action will be thrust into the spotlight next week as the Supreme Court prepares to hear two cases: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.
A ruling on the two cases by the conservative court could reverse 40 years of precedent of race-conscious admissions to colleges and universities.
Here’s what you need to know.
What is affirmative action?
Affirmative action broadly refers to policies that favor individuals who have been subject to previous discrimination.
At the nation’s universities, it has been used to diversify enrollment, often in schools that historically turned away minority students.
A landmark case came in 1978 when the Supreme Court considered Regents of the University of California v. Bakke.
Allan Bakke, a white man, applied to the University California, Davis’s medical school. His application was rejected because of the school’s racial quota system: out of 100 spots, 16 were reserved for racial minorities.
Bakke sued the school, arguing that the racial quota system was unconstitutional and a violation of the Civil Rights Act of 1964.
While the court determined UC-Davis’s quota did, in fact, violate the Constitution’s Equal Protection Clause and the Civil Rights Act, it also ruled that diversity in university admissions was a “constitutionally permissible goal.”
Since then, schools have used race as an ingredient in selecting their student bodies.
Groups backing Harvard and UNC in the cases set to go before the Supreme Court next week say that race is now one of many factors considered in enrollment.
“Race is considered alongside socioeconomic status, where somebody grew up, what their parents’ profession was, what achievements they may have had in high school,” said Genevieve Bonadies Torres, associate director for the Educational Opportunities Project with the Lawyers’ Committee for Civil Rights Under Law.
The group is representing UNC students and alumni who have been granted oral argument in this month’s cases.
“It’s that holistic assessment considering all forms of diversity and all characteristics that ultimately allows admissions officers to better understand a student’s comprehensive story, their comprehensive achievements and what they can contribute to the university campus and beyond,” Bonadies Torres said.
The use of race as an ingredient in the admissions process, however, has routinely provoked a pushback, often from white and Asian American students, who say it is discriminatory.
The new lawsuits before the court
Students for Fair Admissions (SFFA), a nonprofit formed by conservative activist Edward Blum, initially sued Harvard and UNC in 2014, alleging the schools illegally discriminate against Asian American and white applicants.
SFFA argued that Asian American applicants are held to a higher academic standard than other students in Harvard’s application process.
The group argued that Asian Americans are disadvantaged in the application process due to receiving lower “personal ratings” and are admitted at a lower rate than white applicants despite having higher test scores on average.
Like Bakke, SFFA said that the consideration of race in the admissions process violates the Constitution’s Equal Protection Clause. The group is now asking the court to overturn Grutter v. Bollinger.
“Grutter’s core holding — that universities can use race in admissions to pursue student-body diversity — is plainly wrong,” SFFA wrote in court papers.
The challengers say their case against Harvard’s policy gives the court an “ideal vehicle” for reevaluating its stance on affirmative action given the school’s outsized role in past rulings.
Harvard, in court papers, denies that its policy is discriminatory. The school accused SFFA of seeking to upend decades of precedent allowing schools to promote on-campus diversity.
In the UNC case, the challengers argue that the college is discriminating against white applicants. After losing both 2014 cases in the lower courts, SFFA appealed to the Supreme Court, which will hear oral arguments on Monday.
The stakes are high
In an amicus brief this summer, the NAACP argued SFFA is attempting to instill a “revisionist interpretation” of Brown v. Board of Education, the landmark Supreme Court case that said racial segregation in public schools is unconstitutional, even if the segregated schools are otherwise equal in quality.
“Brown explained how the racial caste system established through chattel slavery demeans and subordinates Black people and thus promised to secure their equality in our educational system and as citizens of our democracy,” the NAACP wrote.
Despite the Brown ruling, unequal treatment of Black students in education persists, particularly between kindergarten and high school. Race-conscious admissions take that inequity into consideration, the NAACP argues.
To overturn the precedent of race-conscious admissions “would contravene Brown’s core principles” and “transform Brown from an indictment against racial apartheid into a tool that supports racial exclusion, prevents further advancement in the Nation’s progress towards racial integration, and deepens persistent inequalities in educational opportunities,” the brief states.
Nine states have prohibited the consideration of race in public university admissions: California, Florida, Washington, Arizona, Georgia, Michigan, Nebraska, New Hampshire and Oklahoma.
This has cut into the enrollment numbers of Black and Native American students at California’s most selective schools, the University of California, Berkeley, and UCLA.
“Following a 1996 ban on affirmative action at the University of California (UC) system, for example, enrollment of Black and Native American students at Berkeley and UCLA, the system’s most selective campuses, was ‘cut in half,’” Glenn C. Altschuler, the Thomas and Dorothy Litwin professor of American studies at Cornell University, and David Wippman, president of Hamilton College, wrote in The Hill earlier this year.
“Ever since, the UC system has ‘experiment[ed] with a wide variety of alternative approaches’ for fostering student-body diversity, with only limited success,” they added.
Altschuler and Wippman argue that while SFFA and other critics of affirmative action often claim that “targeting economically and educationally disadvantaged students is the best way to achieve diversity,” white students with competitive academic qualifications often greatly outnumber students of color.
As a result, “efforts to target those groups increase socioeconomic diversity, an important benefit in its own right, but are ‘less effective at enrolling students from underrepresented minority groups.’”
—Updated Thursday at 10:25 a.m.