Affirmative Action Hangs in Doubt

​The U.S. Supreme Court heard two cases on Oct. 31 that will test the future of affirmative action in higher education, the available pipeline of recent graduates and diversity programs in the workplace.

Conservative justices raised doubts about the need for affirmative action 20 years after the court set a precedent to allow colleges to consider race as one of many factors in admissions. It's unclear when the court will issue a final decision in the two new cases.

"While we are months away from a decision, if the Supreme Court concludes that Title VI [of the Civil Rights Act of 1964] or the U.S. Constitution prohibits nearly all consideration of race, it could expose employer diversity, equity and inclusion [DE&I] programs to increased scrutiny and risk of litigation," said Larry Turner, an attorney with Morgan Lewis in Philadelphia. "Employers in all industries should be prepared to assess their existing DE&I programs and practices, as well as any race-conscious charitable initiatives, for risk if the court moves away from current interpretation of civil rights laws."

Background

Students for Fair Admissions, a nonprofit group organized by conservative legal strategist Edward Blum, sued Harvard University and the University of North Carolina (UNC). The group alleged that Harvard and UNC unfairly give preference to Black, Hispanic and Native American applicants to the detriment of white and Asian American applicants.

Harvard and UNC argued their race-conscious admissions policies comply with the federal law. They said the law allows race to be one of many factors in college admissions policy, as long as that policy serves a compelling governmental interest, such as the educational benefits that arise from diversity among students and faculty.

Response from Justices

Justice Neil Gorsuch pointed out that the federal Civil Rights Act does not allow the use of race, and discrimination is not permitted in programs and activities that receive funding from the federal government, as Harvard and UNC do.

Justice Ketanji Brown Jackson said race "is never standing alone. It's in the context of all of the other factors. There are 40 factors about all sorts of things that the admissions office is looking at."

The justices asked questions about alternative criteria that could be considered instead of race. "What if a college says we're going to give a plus to descendants of slaves? Is that race-neutral or not?" Justice Brett Kavanaugh asked UNC's attorney, Patrick Strawbridge. 

"That very quickly starts to look like just a pure proxy for race," Strawbridge said. "It would obviously depend on the actual program as it was implemented."

Justice Clarence Thomas argued that Harvard is not socioeconomically diverse, and it could achieve a "different, but excellent" diversity by using socioeconomic factors instead of race.

Justice Sonia Sotomayor pointed to how race influences many other aspects of life: "If you're Black, you're more likely to be in an under-resourced school. You're more likely to be taught by teachers who are not as qualified as others. You're more likely to be viewed as less academic, as having less academic potential."

Racial bias can show up in personal essays as something students needed to overcome in their life. "Being subject to discrimination is one part of what it means to have race affect your experiences generally," said Justice Elena Kagan.

Justice Amy Coney Barrett asked "what if there's no end point" to colleges using race as a factor in admissions, despite the fact that the Supreme Court, in its ruling in Grutter v. Bollinger in 2003, suggested that such criteria wouldn't be necessary by 2028.

The conservative justices highlighted how it's difficult for colleges to prove that they narrowly tailored their use of race, as required under Grutter, said Katie Anderson, an attorney with Clark Hill in Dallas and president of the Texas Association of Community College Attorneys.

What Diversity Brings

Much of the discussion centered on why affirmative action would be necessary now.

"Student body diversity makes our businesses more innovative and globally competitive, our scientists more creative, our medical professionals more effective, and our military more cohesive," said Seth Waxman, an attorney for Harvard.

"Corporate America, like the United States military, relies on having a diverse pipeline of individuals who had the experience of learning in a diverse educational environment and who themselves reflect the diversity of the American population," said Elizabeth Prolegar, the solicitor general of the United States. "I think [overturning the precedent for affirmative action] would have these destabilizing ramifications in just about every important industry in America."

Kagan said colleges "are the pipelines to leadership in our society. It might be military leadership. It might be business leadership. It might be leadership in the law. It might be leadership in all kinds of different areas. … If universities are not racially diverse … then all of those institutions are not going to be racially diverse, either."

Diversity in colleges promotes learning outcomes; reduces prejudice; and improves students' cognitive abilities, critical thinking skills, self-confidence, and skills needed for professional development and leadership, according to an amicus brief filed by the American Educational Research Association. Having diversity in the classroom can counter harmful stereotypes, reduce discrimination, foster a robust exchange of ideas and prepare students to work in a diverse society, according to a brief filed by the National Women's Law Center.

In another amicus brief, 14 Republican U.S. senators and 68 U.S. representatives argued that considering race in college admissions is unconstitutional and harmful to Asian American students.

States' Experiences

Nine states have already prohibited affirmative action in public university admissions: Arizona, California, Florida, Georgia, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

In the states that have banned affirmative action, that move led to persistent declines in the percentages of Black, Hispanic and Native American students admitted to and enrolling in public flagship universities. Those states have not been able to successfully stop those declines by using alternative strategies, according to research published in the journal Educational Evaluation and Policy Analysis in 2020.

The alternative strategies include adding socioeconomic factors to admissions decisions, increasing outreach and financial support for low-income students, and dropping the practice of giving preference to relatives of alumni. In addition to academic credentials, universities typically consider factors like extracurricular activities, community service, personal essays, interviews, letters of recommendation, and special talents in sports or music.