On Halloween, the Supreme Court heard arguments for and against the continuation of affirmative action policies at US colleges and universities. On one side of the case is the Students for Fair Admissions (SFFA) organization, which represents and files lawsuits on behalf of individuals who allege they have been rejected by universities on the basis of their race (the majority are Asian Americans and Pacific Islanders). On the other side of the case are Harvard University and the University of North Carolina, both of which contend that an admissions committee “need not ignore a candidate’s race any more than it does a candidate’s home state, national origin, family background, or special achievements.”
Given the new make-up of the court – a 6-3 conservative majority – most legal scholars and watchdogs assume the Court will rule in favor of SFFA. The three senior conservatives, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, have previously argued against affirmative action when the issue has come before the Court in the past. The question, then, is what consequences will follow from such a ruling. The road may be paved for challenges to “race-conscious” policies in other areas, such as employment. Harvard’s co-counsel in the case, William Lee, said of the likely ruling that it would “open up a Pandora’s box across the country and across institutions and industries.”
Yet an end to affirmative action policies was already suggested in the Court’s first affirmative action case in 2003, Grutter vs. Bollinger. Though the Court held that affirmative action policies did not in fact violate the Fourteenth Amendment, they wrote in the majority opinion that “race-conscious admissions policies must be limited in time…the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” This was because, in the opinion of the Court, “racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands.”
Central to the current case for Court conservatives is how affirmative action policies would be continued and for how long. Chief Justice Roberts asked Solicitor General Elizabeth Prelogar, “Grutter gave us a number, do you want to give a number?”, in reference to a timeframe for affirmative action policies to end. More liberal members of the Court, such as Justices Jackson and Sotomayor, questioned why affirmative action policies would need to have a set end date, and why race could not be part of a holistic evaluation of university applicants. Justice Elena Kagan also made the point that higher education is a pipeline into other American institutions, and an end to affirmative action could result in an institutional makeup unreflective of the actual population.
But are current affirmative action policies creating a student population unreflective of the applicant population? This claim is behind SFFA’s case against Harvard. The founder of SFFA, Edward Blum, alleges that Harvard discriminates against Asian Americans, who have on average higher test scores and grades than any other ethnic group including whites. Blum compared Harvard’s treatment of Asian Americans to its previous treatment of Jewish applicants – Harvard imposed a “Jewish quota” to limit the number of Jewish students accepted in the 1920s and 30s. Research throws some doubt on the comparison, however: Asian American enrollments have risen consistently at Harvard, such that 28% of the entering class at Harvard this year self-identifies as Asian American. The country’s overall Asian population is 7.2%.
What happens next? In the wake of the oral arguments heard at the end of October, the Supreme Court will now discuss the case in private meetings and take a vote. The final decision will likely be released in late June or early July of 2023. Upon the decision’s release, we may see further cases brought before the Court related to race-based policies in other industries. Solicitor General Prelogar predicts “negative consequences [that] would have reverberations throughout just about every important institution in America.” Others involved – such as Blum and members of SFFA – are more optimistic, but still cautious. In an interview with CNN, Blum noted, “[after] working on eight Supreme Court cases, I’ve learned that litigants can be very surprised.”
How is this case being viewed by Asian Americans, given the allegations of discrimination against Asians that brought the case forward initially? According to a recent survey through AAPI Data, 69% of registered Asian American voters support affirmative action policies (among registered Chinese voters, the number is slightly lower at 59%). These numbers have remained steady since at least 2014. Any claims by the plaintiffs in the Supreme Court case that Asian Americans are opponents of affirmative actions policies, then, are doubtful.
Regardless, by next year the Court will likely find the affirmative action policies of Harvard and the University of North Carolina to be unconstitutional – another landmark ruling for this particular Court, which has already seen the overturning of Roe vs. Wade and will rule on cases relating to gun rights, immigration, and state power over the next few months. The importance of maintaining or changing the balance of power in the Supreme Court will not be lost on politicians and voters as we head towards the 2024 election.
