November 3, 2018 marked the end of the prominent affirmative action case at Harvard University. This trial brought up recurring questions over the use of race as a factor in college admissions. Specifically, many have asked the extent to which race should be used as a factor in college admissions.
The debate over the role of affirmative action in college admissions is not new. The Regents v. Bakke Supreme Court case of 1978 officially permitted colleges and universities to use race as a factor in college admissions. The ruling was uncalled for at the time; it seemed to contradict both the Civil Rights Act of 1964 less than two decades before and the Equal Protection Clause of the 14th Amendment. A 4-4 split on the Court left Justice Powell to decide the case. Justice Powell substantiated that the case was highly debatable and nuanced. In the end, he cast his vote in favor of Bakke, arguing that UC Davis’ quota system for admissions into their medical school, which saved 16 spots out of the 100 person class for minorities, was unconstitutional. Where Justice Powell’s rationale complicates the matter is he did not outright reject the notion of affirmative action in college admissions as unconstitutional. “Race,” Justice Powell opined, “could only be used in coordination with other factors for the purposes of diversity.”. This was a critical statement made by Justice Powell because it asserted that the only justification for affirmative action in college admissions was its benefit of ensured educational diversity. Powell did not recognize affirmative action as conceived to rectify historical racism that minorities have experienced. In fact, Powell asserted, “There is a measure of inequity in forcing innocent persons in [Bakke’s] position to bear the burdens of redressing grievances not of their making.” This case centered the argument surrounding affirmative action on the issue of diversity instead of historical reparations. This case brought diversity to the front line of arguments surrounding affirmative action. The ruling would come to ignite a long-standing battle over affirmative action in college admissions because a clear line has yet to be drawn between admissions methods that promote diversity, and those which limit equal opportunity for all.
Since Bakke, several cases have reached the Supreme Court in the continuous debate over what processes and policies in college admissions are productive for education and diversity and which prevent everyone from the same opportunities. For instance, in 2016 the Supreme Court heard Fisher v. University of Texas. The Court was split—with the dissenting opinion arguing that the University of Texas’ policies unconstitutionally favored minorities in the admissions process.
Just recently, the legal debate surrounding affirmative action has once again emerged at one of the most prestigious universities in the world: Harvard. A group of Asian-American students formed the Students for Fair Admissions (SFFA) and accused the university of discriminating against Asian-Americans in the admissions process through the so-called ‘personal rating’ admission faculty are instructed to use. This rating is non-quantitative and encompasses factors like letters of recommendation and alumni interviews, but a pattern of higher personal ratings can be seen for some races, such as African-American and those of Hispanic heritage. Previous cases have argued that affirmative action should favor all minorities above the nation’s racial majority, but SFFA is accusing Harvard of favoring specific minorities over others in the admissions process. This case has shown that there is now yet another shift in the argument of affirmative action since Regents v. Bakke. The principle argument in this forty-year-old case is centered on the prospect of creating educational diversity for the future, while somewhat ignoring the original intentions of affirmative action as reparation for the past. Now, however, the argument has become not whether diversity is beneficial for education, but instead institutions choosing specific diversity that they see as beneficial. This is almost certainly ignoring the Equal Protection Clause, as it is a clear instance of people of different races being treated differently not to promote overall diversity, but specific diversity decided by the university itself.
Though the trial has ended, this case will likely not be put to rest. U.S. District Court Judge Allison Burroughs has yet to release her final opinion on the case, but when she does, both sides say they will appeal, meaning another affirmative action case is likely to reach the Supreme Court docket.
The issue of affirmative action is not black and white. As time goes on, more issues will surface as complex tactics used by colleges in admissions continue to emerge. Since Regents v. Bakke deemed racial quotas unconstitutional, universities each have their own methods for incorporating race in non-quantitative manners into their admissions. Given the nature of somewhat subjective policies, it is difficult for a court to make a clear-cut assessment of which practices promote diversity and which limit opportunity. It is not until a specific issue arises, like that at Harvard this past fall, that a court can make a specific ruling on an aspect of affirmative action in the admissions process. Perhaps this is why there has been a continuous stream of affirmative action cases that reach the Supreme Court.
Additionally, there are factors that extend beyond the immediate admissions process that must be considered when analyzing the continuous nature of the issue at hand. Why was affirmative action instituted in the first place? This is yet another complex problem, touching on social structures and institutions regarding race, ethnicity, and access to education. Minorities statistically have higher rates of poverty, and cities and other urbanized areas often have higher concentrations of minority populations. With impoverished populations naturally comes a lack of funding for public education, which can be seen in cities throughout the country. Affirmative action in college admissions puts context to the scores and other elements of a student’s application, encouraging the admissions board to look at the applicants as people of different backgrounds who have been afforded different levels of educational opportunity, thus providing a chance for students of all backgrounds to have the same opportunities. Should some of these other application factors be eliminated, affirmative action would be of less importance in the college admissions process.
Should the case at Harvard reach the Supreme Court, it will likely cause divide between the justices. Will this be the last court case regarding affirmative action in college admissions? Almost certainly not. With the ever changing ideologies on the courts, there will likely be an ongoing battle for and against affirmative action in all aspects of American society.