The Supreme Court to reconsider affirmative action in college admissions

A majority of citizens value diversity but condemn discrimination based on racial criteria.

Universidad de Harvard / Fernando García Redondo (Flickr).,

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31 de octubre, 2022

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Dobbs v. Jackson was the Supreme Court's final major decision in the previous term. As the new term begins, it is expected that SCOTUS will again have to take a stand on major issues. One such decision is imminent, and concerns affirmative action in college admissions.

This Monday, two separate cases began, both involving the same issue: Should the state discriminate on the basis of racial criteria in university admissions? The cases are Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. Harvard College. The association is defined as follows:

Students for Fair Admissions (SFA) is a non-profit group of more than 20,000 students, parents and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary and unconstitutional. Our mission is to support and participate in litigation that restores the original principles of our nation's civil rights movement: A student's race and ethnicity should not be factors in harming or assisting that student in gaining admission to a competitive college or university.

Against Asian Americans

Attorney Edward Blum, on behalf of SFA, sued both universities on the same day in 2014 on the same legal basis. The lawsuits alleged that the two universities imposed more stringent barriers to access on Asian Americans than on others. According to suit,

The personal ratings assigned by Harvard reveal a clear racial hierarchy: African-Americans consistently get the best personal ratings and Asian-Americans the worst.

These provisions against the Asian population are reminiscent of those adopted by Harvard University in the 1920s against Jews, for fear that they would comprise a disproportionately high percentage of the student body if only academic merit was taken into account.

Against civil rights

According to Blum, these provisions violate federal civil rights laws. The lawsuit showed that, despite obtaining better grades than the white population, Asians were finding it more difficult to gain admission to these institutions.

In the UNC case, SFA added a new consideration: the public university in Chapel Hill violated the constitutional guarantee of equal protection under the law. UNC claims that race is only one of the criteria it uses to choose students, and that it "can sometimes tip the balance toward admission in an individual case, but almost always does not."

According to the lawsuit, the racial discrimination provisions favored the admission of black, Hispanic and Native American populations. However, the suit adds that this is not beneficial to admitted applicants, as they wind up participating in rigorous academic activities for which they are not prepared.

This Monday the deliberation process began, and it is expected to last until in July 2023. The Supreme Court has long interpreted affirmative action policies as legal. However, after the entry of the last four members of the Supreme Court, which include three conservative justices nominated by former President Donald Trump (Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett), there are now six conservative justices to just three progressives. Conservative judges are more likely to abide by the "original intent" of the Constitution, and therefore the verdict is expected to be against racial discrimination.

University of California v. Bakke

One of the Supreme Court's decisions recognizing the right of educational institutions to apply racial criteria in the admission of students is University of California v. Bakke (1978). In this instance the Supreme Court then disqualified the argument that preferences could be granted to minority applicants to compensate for a prior history of racial discrimination.

However, the ruling acknowledged that universities can use race, among other demographic, geographic or talent-based criteria, to promote greater diversity. This is the criterion adopted by both Harvard University and the University of North Carolina.

A judgment endorsed by public opinion

The Dobbs v. Jackson ruling, which overturned Roe v. Wade, placed the Supreme Court in a difficult position. SCOTUS had to put the rule of the Constitution up against the political views of a majority of Americans who believe that the elimination of Roe v. Wade was unjust. However, in the two cases promoted by Students for Fair Admissions, the circumstances are a bit different.

A FiveThirtyEight analysis showed that the majority of citizens are against affirmative action. A majority of Americans value diversity as a positive thing, but they do not want it imposed upon them by treating people differently based on the color of their skin.