Supreme Court Poised to End Affirmative Action in College Admissions
Affirmative action, a SCOTUS decision that has lasted for decades, is now being deliberate by the current Supreme Court. Credit: Anthony Quintano, Flickr
The Supreme Court’s sharp questioning on affirmative action after oral arguments on Oct. 31 suggested that race-based college admissions may become a practice of the past.
All six of the Court’s conservatives indicated skepticism about allowing race to be considered in college admissions during vigorous questioning after a marathon five-hour session of arguments in cases challenging the race-conscious admissions policies at Harvard and the University of North Carolina.
Given the Court’s strong conservative majority and their willingness to scrap decades of precedent—as exhibited in their overturning of Roe v. Wade this summer—many anticipated the Court would rule against affirmative action in college admissions when they agreed to hear the two cases seeking to end the program last January.
Students for Fair Admissions, a nonprofit against racial classifications and preferences in college admissions, believes affirmative action is favoring Black, Hispanic and Native American applicants while discriminating against White and Asian applicants. Specifically, they accused Harvard’s race-based admissions policy of actively discriminating against Asian applicants. They cite the equal protection clause as grounds to forbid racial classifications for any purpose.
As denoted by the New York Times, two general themes ran through the conservative judges’ questioning on affirmative action: “that educational diversity can be achieved without directly taking account of race and that there must come a time when colleges and universities stop making such distinctions.”
The 2003 ruling in Grutter v. Bollinger, a major affirmative action precedent, came under fire by the Court’s conservatives. In Grutter, the Court “endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity.”
In her Grutter opinion, Justice Sandra Day O’Connor indicated that 25 years in the future, race-based admissions would no longer be necessary. Justice Brett Kavanaugh pointed to O’Connor’s statement—which essentially suggested a cut-off year of 2028—and said the Court must ask soon. “The current admissions cycle is for the class of ’27. It’s going to be too late to do anything about that cycle,” Kavanaugh said. “The next is the class of ’28.”
Justice Amy Coney Barrett pointed to Grutter as well, and read directly from the Court’s opinion to underscore that the consideration of race as a factor should come to an end. “Grutter says this is dangerous and it has to have an end point,” said Barrett. She added that Grutter called race classifications “risky and potentially poisonous.”
Justice Kavanaugh, among others, argued that without an end-date, the Court would struggle to support affirmative action.
The Court’s new liberal Justice Ketanji Brown Jackson pushed the notion that diversity was a compelling reason to permit race as one of many factors to be part of the admissions process for higher education. She pointed out that numerous other factors are considered in a student’s application, and that race is never a sole deciding factor.
Justice Jackson noted that ending affirmative action could harm students who wished to highlight the importance of race to their identity. Justice Sonia Sotomayor also pointed to the fact that in the nine states where affirmative action has been repealed, white admissions have either stayed the same or increased, whereas “in some institutions, the numbers for underrepresented groups has fallen dramatically.”
The Court’s rulings in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC will likely land in June.