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In January 2022, the Supreme Court announced that it would once again review the long-standing policy of affirmative action in cases involving the admissions policies at Harvard University and the University of North Carolina at Chapel Hill. To examine the implications of these cases, designated as Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, it is important to understand the complex history and context of affirmative action as it relates to higher education.

What is Affirmative Action?

Affirmative action is defined as “a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.” In other words, affirmative action aims to remedy discrimination based on race, creed, national origin, and other demographic factors in seeking access to higher education and professional opportunities. The term affirmative action was first used in former President Kennedy’s Executive Order 10925, in which he wrote that government contractors must “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” Eventually, this policy expanded to educational institutions that receive federal funding. 

Affirmative Action and Higher Education: 1978-2016

According to Regents of the University of California v. Bakke, 1978, sixteen of one hundred spots for admission to the University of California’s Medical School at Davis each year were reserved for minority students. Allan Bakke, a white man who had been rejected twice, contended that this form of affirmative action policy meant that he was excluded from admission solely on the basis of race. In a complex ruling, the Supreme Court upheld affirmative action in the general sense, meaning that higher education institutions could continue considering race as part of their admissions processes. However, the Supreme Court also ruled that racial quotas were unconstitutional. This legal framework would go uncontested until a pair of cases challenging the University of Michigan’s policies surfaced in the early 2000s. 

In 1995, Jennifer Gratz and Patrick Hamacher, residents of Michigan, were both denied admission to the University of Michigan’s College of Literature, Science, and the Arts (LSA). Two years later, they filed a class-action lawsuit, arguing that the University’s admission procedure violated the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. Specifically, they contested the policy in which “every applicant from an underrepresented racial or ethnic minority group is automatically awarded 20 points of the 100 needed to guarantee admission.” At roughly the same time, the admissions procedures at the University of Michigan’s Law School were being challenged by Barbara Grutter; however, this policy did not include a points system, instead using holistic review on a case-by-case basis. 

Eventually, the cases Gratz v. Bollinger, 2003, and Grutter v. Bollinger, 2003 reached the Supreme Court and were argued and decided alongside each other. In regards to Gratz v. Bollinger, the Court ruled that the undergraduate admissions policy was unconstitutional because it did not comply with the strict scrutiny standard by generalizing underrepresented minorities. On the other hand, the decision on Grutter v. Bollinger defended the admissions process at the University of Michigan’s Law School. According to the Court, considering race as a factor in admissions did not violate the Equal Protection Clause of the 14th Amendment in this case because the law school used a holistic approach to individually consider each applicant. As part of the majority opinion, Justice Sandra Day O’Connor noted that “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” referring to the compelling interest of having a diverse student body. In essence, as a result of considering these cases in tandem, the Supreme Court upheld affirmative action when used on an individual, holistic basis while extending the precedent that general, numerical systems are not acceptable. 

Following the decisions of Gratz v. Bollinger and Grutter v. Bollinger, the University of Texas altered its admissions procedures to consider race and promote a diverse student body. Thus, while Texas high school students who ranked in the top 10% of their class would be guaranteed admission as per Texas state law, everyone else would be considered in a process of holistic review that included race. In 2008, Abigail Fisher applied to the University of Texas and competed among other students who did not rank in the top 10% of their class. She was rejected. In response, Fisher, recruited by conservative activist Edward Bluhm, filed suit against the university. Similar to her predecessors, she claimed that the admissions policy violated the Equal Protection Clause of the 14th Amendment. Eventually, this case reached the Supreme Court under the name Fisher v. University of Texas at Austin, 2016. On June 23, 2016, the Supreme Court affirmed the decisions of the lower courts, holding that the University’s race-conscious admissions process satisfied strict scrutiny under the Equal Protection Clause and furthered the compelling interest of student body diversity. 

Affirmative Action Returns to the Supreme Court

In 2014, prior to the decision on Fisher v. University of Texas at Austin, Students for Fair Admissions (SFFA), an organization founded by Edward Blum, filed lawsuits against Harvard College and the University of North Carolina. The claim of these lawsuits was that the universities’ race-conscious admissions policies unlawfully discriminate against white and Asian-American students, thereby violating Title VI of the Civil Rights Act of 1964. Furthermore, according to Blum, polls show that Americans strongly disapprove of race-conscious admissions policies. However, a Gallup poll from 2021 indicates that, on the contrary, support for affirmative action policies is higher than it has been in the past two decades, falling at 62%. 

Regardless of public opinion, affirmative action will once again be reviewed by the Supreme Court, as the body has decided to reconsider the role of race in college admissions. Reminiscent of 2003, the cases Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina have been consolidated for oral argument with a decision expected in 2023. Essentially, this lawsuit seeks to overrule the decision reached in Grutter v. Bollinger. 

Although it is difficult to predict what the outcome of these cases will be, many experts believe the fact that the Supreme Court agreed to hear them at all is a sign that the now conservative-leaning entity may overrule preceding decisions. In other words, the combination of Justice Kennedy’s retirement, Justice Ginsburg’s passing, and Justice Kavanaugh’s and Justice Barrett’s ascension to the Court means that the narrow majority that decided to uphold affirmative action through Fisher v. University of Texas no longer exists. Despite this, experts such as Michael Olivas, the emeritus William B. Bates Distinguished Chair in Law at the University of Houston Law Center, believe that the very clear legal situation surrounding affirmative action will stand regardless of the leanings of the current Justices. 

What will happen if the Court reverses its previous decisions on affirmative action? The impact will be wide-reaching, as the majority of higher education institutions have race-conscious admissions policies. In terms of the impact on student body diversity, research on the effect of affirmative action bans in six states reveals that these bans have caused around a 17% decline in the matriculation of students of color to medical school programs. Additionally, this finding mirrors the drops in student of color enrollment at other educational institutions (i.e. undergraduate programs, law school). In California specifically, banning affirmative action has hurt the enrollment of minority students in California’s public universities. Harvard has reported that if it were to stop considering race in its admissions policies, the proportion of African American, Hispanic, and other minority groups would decrease based on data from 2019. This finding supports the results of other studies whereby a lack of affirmative action policies would benefit already advantaged groups. In all, it is clear that the developments surrounding this case will be incredibly consequential. That said, overruling previous decisions that have upheld affirmative action in higher education admissions does not mean that universities will be unable to admit and promote diverse student bodies. In 2020, the University of California at Berkeley, a public university subject to California’s ban of affirmative action, reported that it had admitted the most ethnically diverse class in thirty years. How? According to director of undergraduate admissions Olufemi Ogundele, UC Berkeley was able to do this by having application readers better understand the demographics of certain areas and high schools and by altering marketing and recruitment strategies to be more inclusive to students from diverse backgrounds, among other strategies. Simply put, although the Supreme Court’s decision could dramatically alter the ways in which universities promote diversity, ending affirmative action does not make it impossible for these institutions to do so. Even so, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina are certainly cases to watch this upcoming year.