Nearly twenty years ago, the Supreme Court ruled in Grutter v. Bollinger that student body diversity is a national priority that justifies the consideration of race in university admissions. “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential,” Reagan-appointed Justice Sandra Day O’Connor wrote in her landmark majority opinion in 2003, “if the dream of one Nation, indivisible, is to be realized.” The decision upheld Regents v. Bakke, a ruling on affirmative action from a quarter century earlier — but with one notable qualification. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote, suggesting that should consider race in their admissions process — but not forever.
While O’Connor suggested full racial equality would be achieved in 2028, affirmative action may not last that long. On Monday, the Supreme Court heard oral arguments on two cases that could decide the future of race-based considerations in higher education — one challenging the admissions process at University of North Carolina at Chapel Hill, on the argument that it favors Black and Latino applicants in violation of the Fourteenth Amendment; and another challenging the admissions process at Harvard, on the basis that the practice violates the Civil Rights Act. (Ketanji Brown Jackson, the first Black woman to sit on the high court, has recused herself from the Harvard case because she previously sat on the school’s Board of Overseers.) Backing both challenges is the Students for Fair Admissions, an anti-affirmative action group founded by conservative activist Edward Blum. “What is happening on college campuses today is that applicants are treated differently because of their race and ethnicity,” he told NPR’s Nina Totenberg. “Some are given a thumbs up. Some are given a thumbs down.”
“The Constitution and our civil rights laws forbid the consideration of race in higher education,” Blum added.
Of course, that is not what previous courts have ruled. Since Regents, Grutter, and the 2016 Fisher v. University of Texas decision, the high court has generally upheld universities’ race-conscious admissions policies. But this court, with its 6-3 conservative supermajority, has shown little reverence for longstanding precedent — it did away with 50 years of settled law in overturning Roe over the summer — and seems poised to obliterate this one, too.
Clarence Thomas, the Supreme Court’s leading conservative, has long opposed affirmative action, suggesting that the policy is itself tantamount to discrimination. He again signaled his disapproval in oral arguments Monday, expressing skepticism about the “educational benefits of diversity” and questioning what diversity actually is. “I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.” Chief Justice John Roberts and Samuel Alito, the latter of whom authored the court’s Dobbs decision ending federal abortion rights, have also directly criticized affirmative action.
While public opinion is decidedly in favor of reproductive freedom, it is more mixed on affirmative action; a recent Washington Post poll suggested 63 percent of Americans oppose race-aware admissions, even as 64 percent favor programs aimed at boosting diversity on campuses. When it comes to racial groups, white Americans appear most opposed to affirmative action, with two-thirds in the survey arguing that the Supreme Court should prohibit the use of race as a factor in admissions. But Black respondents were also somewhat split, opposing the Supreme Court ending affirmative action, but only narrowly, with 47 percent in support of a ban.
While the polling reflects some traditional partisan divides — Republicans were “significantly more likely than Democrats” to oppose race-based admissions — it also provides a glimpse into America’s otherwise complicated views on the issue. “Colleges are there to educate all, and they need to be looking at their populations to make sure that a broader swath of society has an opportunity for a good education,” one respondent, who is Black and describes himself as fiscally conservative and socially liberal, told the Post. “They should be allowed to consider race as a factor.”
Should the Supreme Court decide that colleges cannot, it won’t just undo decades of progress — it could push Black students “even further back” in “the line of American life,” Geoffrey R. Stone and Lee C. Bollinger — the former president of University of Michigan and defendant in the landmark Grutter case of 2003 — wrote in the Atlantic Monday. And while O’Connor may have suggested that affirmative action won’t be necessary in six years, it is, for now, “impossible to argue that Black Americans enjoy equality of opportunity,” Stone and Bollinger wrote. “They do not. Affirmative action must continue, potentially for generations to come — because the invidious discrimination experienced by Black Americans over a three-century span has not been undone.”
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