What to Know About the Supreme Court's Ongoing Case on Affirmative Action

All eyes are on the Supreme Court after the controversial and highly unpopular overturning of Roe v. Wade. On Halloween, the Court began hearing the seventh and eighth cases that Edward Blum, a longtime affirmative action opponent, brought before them. The cases challenge affirmative action, a set of procedures designed to eliminate unlawful discrimination among university applicants, remedy the results of such prior discrimination, and prevent such discrimination at universities in the future.

Blum’s grounds are that the law—by asking universities considering an individual’s race and ethnicity and to keep a certain amount of spots open for said individuals—violates the Constitution and federal law. “I think this is just the beginning of the restoration of really the founding principles of our civil rights movement,” he said.

“The founding principles were that your race and your ethnicity should not be used to help you or harm you in your life’s endeavors,” he continued. “I think the majority of Americans will think of this as a good outcome and then be a steppingstone to other good outcomes, not just in the law but in the way we see each other.” 

Notably, Blum was also behind Shelby County v. Holder, the 2013 case that removed essential protections from the Voting Rights Act.

Polls have been unreliable surrounding affirmative action, as pollsters will often frame the question deceptively or misleadingly to elicit responses based on their biases. The consequences, if this lawsuit succeeds, will be unclear, as affirmative action is also not an agreed-upon solution, even amongst diversity and inclusion advocates.

Richard Kahlenberg, one such critic, has proposed a socioeconomic affirmative action of sorts, as his research has argued that affirmative action results in class makeups that are on the surface, racially diverse, but socioeconomically homogenous. As he testified for the plaintiff, Harvard University—despite having one of the most racially diverse makeups in the country—had 15 times as many students from the richest one-fifth of the population as the poorest one-fifth.

But this fight has started to expand to high schools, and without any clear solutions—and a court appeared poised to throw out affirmative action protections—that creates a scary landscape for students of color. Black students were all but excluded from institutions of higher education for 100 years in the United States, and a return to a time before affirmative action looks grim. 

The American Civil Liberties Union (ACLU) said overturning affirmative action “will almost certainly mean a significant drop in the number of students of color being admitted to selective universities. In fact, that’s what lower courts in both cases found after closely studying several race-neutral alternatives like a class-based affirmative action or plans similar to Texas’s top 10 percent plan, which guarantees Texas students who graduated in the top 10 percent of their high school class automatic admission to all state-funded Texas universities.”

The organization added:

“Less diverse campuses will harm students of color and white students alike, and take us backward in our efforts to overcome the country’s shameful legacy of racism and racial inequality.”

“A decision outlawing consideration of race in college admissions could also make it harder for employers to take steps to promote equity and diversify their workforce. Dozens of government programs that address past and current discrimination, advance racial equity, and seek to close the racial wealth gap, such as business incubator programs, could also be jeopardized.”

The Supreme Court will issue two decisions on the matter, likely to come in June.

The case before the court concerns racial discrimination in affirmative action programs in college admissions processes, specifically the University of North Carolina, which uses socioeconomic factors in administration and is claimed to incorporate race and violate Title VI of the Civil Rights Act of 1964.

The case seeks review of the Supreme Court decision Grutter v. Bollinger (2003) which validated the use of affirmative action programs in college admissions as long as race is not used as the sole deciding factor.

The case was originally certified and consolidated as part of Students for Fair Admissions v. President and Fellows of Harvard College, which involves Harvard University's undergraduate admissions process which is claimed to discriminate against Asian American applicants.

However, following the appointment of Associate Justice Ketanji Brown Jackson, who was a member of the Harvard board, the cases were split with Jackson abstaining from the Harvard case while participating in the North Carolina one.