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The Supreme Court Could Overturn Previous Affirmative Action Decisions

Feb 4, 2022

Following the October case in which the Supreme Court ruled in favor of UNC for their affirmative action policies, the court has decided to rule on the legality of race-conscious admission policies at Harvard and UNC, as reported by The New York Times. The lawfulness of affirmative action has been a widely debated topic for decades; while the Students for Fair Admissions’ (SFFA) founder, Edward Blum, argues that each student should be evaluated as an individual rather than as a member of an ethnic or racial group, Forbes quotes Harvard as stating that without the practice, the campus community would experience “steep declines in diversity.”

Two affirmative action cases have been brought forth by Students for Fair Admissions. Blum asserted that Harvard and UNC have “racially gerrymandered” their incoming classes to achieve “racial quotas,” according to The New York Times. Further, Harvard’s subjective measurements of likeability, courage, and kindness have been accused of working to discriminate against Asian American students. Harvard’s lawyers defended their admissions programs as lawful, stating that the prosecution relied on flawed statistical analyses. The campus could be filled with applicants with perfect test scores and grades, the school argued according to this CNN article, but they are really looking for a different composite of talent and life experiences to house their campus community. UNC was accused of giving preferences to Black, Hispanic, and Native American students over white and Asian students, which the university defended with similar reasoning to Harvard.

This nationwide debate has sparked various reactions featured in The New York Times. For example, Vanderbilt University’s law professor Brian T. Fitzpatrick claimed the necessity for a correction of the race-conscious administrative policies; universities have become obsessed with racial preferences to an alarming degree. The president of Columbia University thought differently, stating that the “broad public awareness” of the pervasive influence of racism should demand a recommitment to affirmative action, instead of its abandonment. Interestingly enough, according to a survey conducted by the Pew Research Center in 2019, 73% of Americans believed race or ethnicity should not be considered in admitting students.

As shown in this Inside Higher Ed article, both universities won their case in the lower courts, and the Supreme Court has had a history of ruling in favor of the education institutions for their policy of considering race as an evaluative factor of applicants. In 2019 and 2020, the Harvard case decisions determined that there “was no error” in limited use of race in admissions and its consistency with Supreme Court precedents. However, the forty-year precedent faces a challenge with a court that will remain right-leaning, even with the appointment of a new justice. Moreover, this case could have lasting effects on financial aid awarded based on race or minority-centered youth summer programs.

Back in 2016, the Supreme Court ruled in favor of UT Austin considering race in admissions with a 4-to-3 vote, when the court gave universities “substantial but not total” flexibility in devising their own policies, according to Inside Higher Ed. Since then, however, only two justices from the decision remain. The arguments challenging Harvard and UNC’s admission programs will be heard next term, which starts in October. A decision will most likely come out in the spring or summer of 2023.

Following the Grutter v. Bollinger case back in 2003, Justice Sandra Day O’Connor declared that the use of racial factors would not be necessary “25 years from now.” While evaluative measures for test scores and GPAs are more clearly determined in the college application, a student’s background and environment are also critical factors that pose a challenge for educational institutions to investigate and consider alongside evolving societal expectations.

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