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SCOTUS' Decision to Strike Down Affirmative Action and its damaging effect on Universities

By: Zayed Kadir


The SCOTUS’s Decision to Strike Down Affirmative Action has Irreparably Damaged Diversity and Inclusivity at Universities and Colleges


Introduction


On June 29th, 2023, the Supreme Court ruled affirmative action policies are illegal. This decision has ended a 40-year precedent of race-conscious admissions practices in higher education. This ruling will drastically impact the level of diversity and inclusivity at universities and colleges across the nation.



Affirmative Action and Race-Conscious Admissions Explained


Affirmative action refers to the set of policies that take into account the disadvantages faced by applicants on the basis of race, ethnicity, gender, sexual orientation, disability status, etc. to promote diversity and inclusion on college campuses.


Race-conscious admissions refer to admissions policies that consider an applicant's race or ethnicity as one of many factors in the decision-making process. Similar to affirmative action, its purpose is to promote diversity and inclusion on college campuses.

Legacy Admissions and the Hypocrisy of the Supreme Court


Legacy admissions are the practice of giving preferential treatment to students who have family members (usually parents or grandparents) that attended the same institution. Legacy admissions have faced much criticism for how they perpetuate privilege and contributes to maintaining the lack of diversity in higher education.


There is a glaring concern about how many of the Supreme Court Justices are direct beneficiaries of legacy admissions (whether they are legacies themselves, have family ties to prestigious institutions or their children have benefited from legacy admissions) and yet decide affirmative action is constitutional, as both policies bring preferential treatment onto a certain group of applicants. It’s hypocritical that someone who got in because of legacy preference is able to decide that racial preference should never be considered in the admission process. SCOTUS struck down affirmative action policies in a misguided attempt to "promote diversity and create a more equal college admissions process". On one hand, SCOTUS has taken steps to limit affirmative action programs, arguing that race-conscious admissions can be discriminatory or unconstitutional. However, when it comes to legacy preferences, which primarily benefit already privileged individuals from predominantly white and affluent backgrounds, the Court has seemingly ignored its impact. This will only perpetuate the decline in diversity that will come from the decision on affirmative action.



The Origins of Affirmative Action and Race-Conscious Admissions


Affirmative action originates in labor policy, where the term was used in the National Labor Relations Act of 1935 to address unfair labor practices. In the educational context, The fight for more equitable higher education began to gain momentum during the civil rights movement. Activists like Martin Luther King Jr. argued that equal treatment alone could not rectify the racial inequality African Americans had experienced for decades; true equity could only be achieved once the disparities against African Americans were acknowledged and accounted for on a systemic level.


During the 1960s, universities and colleges recognized the need to diversify their campuses as they acknowledged the segregated nature of their campuses, despite employing open-door policies. This led to early affirmative action programs, which aimed to increase access for disadvantaged youth and promote racial diversity among students. Later on, the second wave of affirmative action, lasting from 1965 to 1978, saw nationwide unrest and student protests pushing for official affirmative action policies to address discrimination and promote diversity.

In the 1978 case of the University of California v. Bakke, the Court ruled that while racial quota programs were unconstitutional, race could still be considered as one of many factors in admission decisions. Justice Powell emphasized that promoting campus diversity was a valid and essential goal for universities. This ended the national unrest regarding affirmative action.


Later on in 2003, SCOTUS addressed Gratz v. Bollinger and Grutter v. Bollinger. It found that awarding points based on race, as practiced in Gratz, was unconstitutional as it made race a decisive factor in admissions. However, in Grutter, the Court ruled that considering race as part of an individualized assessment for student diversity was permissible, as long as it was narrowly tailored to serve creating diversity on college campuses.


The Court continued to refine its stance on affirmative action in the Fisher v. University of Texas cases. In 2013's Fisher I, established that race-conscious admissions programs should undergo strict scrutiny to ensure they create diversity in college campuses while not being unconstitutional. The subsequent case, Fisher II in 2016, concluded that the University of Texas's affirmative action program met this standard.



The Start of the End for Affirmative Action


In 2014, the Students for Fair Admissions (SFFA) filled two cases challenging the affirmative action and race conscious admissions practices in the University of North Carolina (UNC) as well as Harvard University. The case accused the universities of discriminating against White and Asian American students through its holistic admissions program, which considered race. SFFA claimed that such race-based admissions violate Title VI of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.


Title VI prohibits race, color, and national origin discrimination in federally funded programs, including universities like Harvard and UNC. The Equal Protection Clause bars race-based discrimination by state and federal governments, allowing it only when serving a compelling government interest and using the least restrictive means. As UNC is a state university, it is also subject to the Equal Protection Clause.


Consequences of the SCOTUS's Decision on Affirmative Action and Legacy Admissions


Due to the Supreme Court’s decision to strike down affirmative action, going forward, it is expected that there will be a decline in racial diversity on campuses. Affirmative action and race-conscious admissions have been instrumental in increasing the representation of underrepresented minority groups in higher education, particularly those operating under a lower socioeconomic status. This ruling may lead to underrepresentation of minority students, especially at top colleges and universities. This could also exacerbate the existing disparities in educational outcomes, graduation rates, and career opportunities for marginalized groups.


Moreover, the continuation of legacy admissions only serves to perpetuate the negative consequences of the SCOTUS decision. Legacy preferences primarily benefit students from predominantly white and affluent backgrounds (which typically are of a higher economic status). Legacy admissions only continue to entrench the lack of diversity in higher education.


Conclusion:


The elimination of affirmative action and race-conscious admissions policies will negatively affect higher education and will limit opportunity for people coming from disadvantaged backgrounds. While some argue that these policies promote “reverse discrimination,” this perspective is misguided and will only help those who already have an advantage.


Affirmative Action’s primary objective is to facilitate students belonging to marginalized groups in attending institutions that have historically lacked diversity, whether that be in race, gender, or class. Without affirmative action and race conscious admissions practices, the disparity between students of a higher economic status and those who come from lower economic brackets, (which primarily consist of marginalized peoples) will only continue to expand.









Citations:


Cineas, F., & Millhiser, I. (2022, October 30). The Scotus decision on affirmative action in colleges, explained. Vox. https://www.vox.com/policy-and-politics/23405267/affirmative-action-supreme-court-ruling-race-harvard-unc-chapel-hill


Katharine Meyer, A. P., & Meyer, K. (2023, June 30). The Supreme Court’s decision to strike down affirmative action means that HBCU investment is more important than ever. Brookings. https://www.brookings.edu/articles/the-supreme-courts-decision-to-strike-down-affirmative-action-means-that-hbcu-investment-is-more-important-than-ever/#:~:text=The%20June%2029%20Supreme%20Court,erodes%2040%20years%20of%20precedent.


Supreme Court Issues Decision Overturning Affirmative Action in Higher Education: Publications. Kirkland & Ellis LLP. (2023, September 22). https://www.kirkland.com/publications/kirkland-alert/2023/06/supreme-court-issues-decision-overturning-affirmative-action-in-higher-education#:~:text=The%20Court%20reasoned%20that%20by,components%20of%20a%20racial%20class.


Totenberg, N. (2023, June 29). Supreme Court Guts Affirmative Action, effectively ending race-conscious admissions. NPR. https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision


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