The Legal History of Affirmative Action Cases: Implications for SFFA v. Harvard and UNC
Since the era of the civil rights movement, affirmative action has been an institutionalized feature of the U.S. college admissions process. However, public opinion and Supreme Court judgements on this contentious legal issue are inconsistent. According to a 2016 Gallup poll, 70% of Americans believe that “colleges should admit applicants based solely on merit, rather than taking into account applicants' race and ethnicity in order to promote diversity.”1 Court precedents are also ambivalent, as cases that are against affirmative action (e.g. Regents of the University of California v. Bakke) have been upheld while cases arguing for the inclusion of race as a part of a holistic review (e.g. Grutter v. Bollinger) were also affirmed. This conflict raises a question: how should the current Supreme Court justices decide on future affirmative action cases in the context of conflicting precedents and major shifts in ideological orientation since the 1960s? Although recent Supreme Court decisions have consistently upheld the conditional approval of affirmative admissions, given that racial quotas are not enforced, the current conservative-leaning court possesses the authority and the majority needed to overturn this five-decade-long legal consensus. I argue that if this is overturned, the resulting consequences for underrepresented minorities include the decrease in proportions of Black, Hispanic, and indigenous students admitted to selective institutions and a decline in socioeconomic diversity on college campuses.
After the signing of President Nixon’s executive orders on promoting racial diversity in work and educational spaces, affirmative action has faced the legal counterclaim of reverse discrimination. In the 1970s, the University of California at Davis Medical School rejected Allan Bakke’s application twice. Bakke, a white student, sued the college on the grounds that UC Davis violated the Fourteenth Amendment's Equal Protection Clause for reserving 16 percent of the incoming class for underrepresented minorities. The plurality opinion by Justice Powell compelled the school to accept Bakke’s application since the institution violated the Equal Protection Clause with the use of a racial quota. Therefore, the landmark cases equated the allocation of a specific proportion of spots to various ethnicities as the “enforcement of discriminatory laws.”2 Although this seems like a victory for the anti-affirmative action proponents, the concept remains a paradox; without the employment of a quota, colleges still reserved substantial leeway in taking race into account in the holistic review system.
Judicial views on affirmative action remained vague for the rest of the twentieth century, against the backdrop of continued resistance from the white American community. The issue resurfaced in 2003, when Barbara Grutter was denied admission to the University of Michigan Law School with an LSAT score of 161.3 In this case, the liberal-leaning court sided with the institution, reasoning that the Equal Protection Clause does not conflict with the perceived educational benefits of admitting a diverse student body. In other words, when race is not considered the sole factor in accepting or declining one’s application, it can be used to supplant a myriad of other variables. Thus, the interests of white and Asian students are unharmed. Both precedents point to “strict judicial scrutiny,” leaving the definition of quotas in the hands of universities to interpret and responsibly self-enforce.
Though the historical record is mixed, the legal landscape for affirmative action remained optimistic in the past decades as most states permitted the holistic review process. However, this is again uncertain as the current Supreme Court term contains six conservative justices, who have shown vindication for overturning contentious landmark cases if they view the fundamental issues to be “egregiously wrong.”4 Observers contend that the recent overturning of Roe v. Wade marks the Trump-appointed Court’s politicized yearnings for a liberal backlash. Therefore, it is significant to analyze what the aftermath of overturning Grutter v. Bollinger would look like for underrepresented minorities.
California’s Proposition 209, which declared affirmative action at state-affiliated public institutions as unconstitutional, presents a compelling point of reference. This legal and political development coincided with a demographic shift on the side of affirmative action opponents. Asian Americans joined the aforementioned side of the issue, citing that their academic merits (often based on standardized tests) are overlooked by colleges in favor of race-conscious decisions.5 In the case of the UCs, in a two-decade span from the passing of the affirmative action ban, the percentage of students for each ethnicity group declined at different rates, while Asian Americans became 22.48% overrepresented as compared to the racial distribution of high school graduates.6 In particular, the Latino population became 26.8% underrepresented, compared to a less drastic 17.81% in 1997. Therefore, it is rational to conclude that if Grutter v. Bollinger were to be overturned, the proportion of underrepresented minorities would decrease in most selective colleges. At the same time, socioeconomic diversity would most likely reduce as well. According to the National Center for Education Statistics, African-Americans and Latinos are “more likely to attend high-poverty schools than Asian-Americans and Caucasians.”7 This statistic demonstrates that underrepresented minorities are more likely to be under financial burden in education, thus explaining the potential of colleges admitting a greater proportion of students with higher household incomes.
Taking the above analyses into account, the implications for the upcoming SFFA v. Harvard case is of high significance. The Students for Fair Admissions continues with the narrative of reverse discrimination against Asian-American students, arguing that Grutter v. Bollinger is unconstitutional. Commenting on the divisive issue, Kenneth Marcus remarked that
“Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men, so today they often view Asian students as lacking the appropriate character.”8
This points to the issue of the unfavorable “personality scores” designated to Asian-American students in interview reports, counteracting their academic performance and undermining their overall success in the holistic review. The association clearly views the moral imperative of higher-education institutions as selecting students with strong academic records rather than achieving diversity through “social engineering.” However, the SFFA’s overemphasis on students’ strengths in standardized test scores and weaknesses in interviews appears to be a sciamachy with the Harvard admissions principles. Instead of admitting applicants with near perfect SAT scores, which constitute ten times the size of the annual undergraduate class, other factors such as the personal statement prove to be essential determinants of application success.9 In conclusion, it is often convenient to attack the cold hard scores of individuals subdivided into racial categories, while leaving the less quantifiable variables in the dark. Thus, a successful resolution of the affirmative action debate must be done in the context of not an imbalance between the Court and selective institutions’ access to information, but a more clear-cut unfolding of the admissions process. Otherwise, the aforementioned grave consequences of such an information disparity could subvert hard-fought social progress.
References
Newport, Frank. “Most in U.S. Oppose Colleges Considering Race in Admissions.” Gallup.com, Gallup, September 23, 2022.
"Regents of the University of California v. Bakke." Oyez. Accessed November 10, 2022. https://www.oyez.org/cases/1979/76-811.
"Grutter v. Bollinger." Oyez. Accessed November 10, 2022. https://www.oyez.org/cases/2002/02-241.
Liptak, Adam, and Anemona Hartocollis. “Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C.” The New York Times.
Peele , Thomas, and Daniel J. Willis. “Dropping Affirmative Action Had Huge Impact on California's Public Universities.” EdSource, October 29, 2020. https://edsource.org/2020/dropping-affirmative-action-had-huge-impact-on-californias-public-universities/642437.
Ibid.
“Ethnic and Racial Minorities & Socioeconomic Status.” American Psychological Association, July 2017. https://www.apa.org/pi/ses/resources/publications/minorities.
Liptak, Adam, and Anemona Hartocollis. “Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C.” The New York Times, January 24, 2022. https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-action-harvard-unc.html.
Harvard Admissions Lawsuit. (2022, November 18). What's at stake? Harvard Admissions Lawsuit. Retrieved December 6, 2022, from https://www.harvard.edu/admissionscase/