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Examining The Stakes: SCOTUS Decision on Affirmative Action in Higher Education

Supreme Court Decision on Affirmative Action in Higher Education Expected this Week

Before the month is out, the Supreme Court will likely release its decision in a pair of cases that could have major implications for college admissions in the future.

The cases, Students for Fair Admissions Inc. v. University of North Carolina, and Students for Fair Admissions Inc. v. President and Fellows of Harvard College, are challenging the use of race as a determining factor in college admissions at both public universities and private universities that receive some level of funding from the federal government.

Advocates for using race as one of many criteria for college admission argue that doing so creates a more diverse campus experience, potentially exposing students to new ideas and perspectives they might not have otherwise had. They say universities have a compelling interest in creating a diverse educational experience and that allows them to take race into account when deciding to admit students.

Opponents of using race as a criterion for college admission say doing so violates the Equal Protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964, which states that No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

For Lia Epperson, a former director of education litigation and policy for the NAACP Legal Defense and Education Fund and a Constitutional Law professor at American University Washington College of Law, to say that the use of race as one factor when determining admission to public universities is discriminatory flies in the face of the true history of discrimination at many universities.

“To think about this being time to end race-conscious policies and practices is historic amnesia given the very deep history of systemic racism and discrimination in the United States,” she said.

Epperson points to the history of exclusion that minority students faced at the two schools in the lawsuits, the University of North Carolina and Harvard, as examples of why the Supreme Court has found race-conscious admissions policies legally permissible.

"UNC, the oldest public university in the United States, was founded in the 1780s to educate the children of slave owners," she said. "It did not allow Black students into the university until the 1950s, and that was only pursuant to a court order. So, when you think of nearly 200 years of exclusion of people of color from this public university, to then say, ‘from the 1950s until today is plenty of time,’ is ahistorical."

Harvard, founded in 1636, admitted its first Black student over 200 years later in the 1840s, and the first Black woman graduated from the school in the mid-20th century.

Now, Black students make up roughly 15 percent of the student body, and “race is one of 100 factors that admissions officers are considering in an applicant” according to Epperson. “So, it is not a predominant factor.”

This is not the first time the Supreme Court has heard a case concerning race as criteria in college admissions. Previous Supreme Court decisions over the last 45 years have set and upheld a precedent that race can be used as one of several factors in determining admission to colleges because of the benefits a diverse campus experience has for students.

“It helps students to compete effectively in a global marketplace. It helps students to be a part of and understand the national interests that we have in such an increasingly ethnically inclusive democracy,” Epperson said.

In the 1978 case Regents of the University of California v. Bakke, the Supreme Court determined that using a quota system to meet a minimum number of minority students was unconstitutional, but using race as one of several factors in admissions to help create a more diverse student body was allowed.

Two 2003 cases, Gratz v. Bollinger and Grutter v. Bollinger, ruled that race could be considered on an individual basis in admissions, so long as it was one of several factors in a holistic process. The Grutter decision said that the University of Michigan Law School’s use of race in their admission process was sufficiently narrow if they viewed each applicant on a case-by-case basis rather than giving all minority applicants a 20-point boost automatically.

In Fisher v. University of Texas in 2016, the Supreme Court upheld the use of race in the college admissions process saying that universities to create a more diverse learning experience for students on campus.

While there are four decades of precedent backing up the constitutionality of race-conscious college admissions , last year’s overturning of the Roe v. Wade decision has made the outcome of these cases unclear.

“If there is some kind of ban, we do have some examples of what universities have done in the wake of that,” Epperson said. Currently, nine states do not allow race to be used as a determining factor in college admittance. California, Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington all have state laws that require race-blind admissions.

California was the first state to stop using race as a factor when deciding which students get admitted. A state-wide referendum in 1996 prohibited the University of California system and other state entities from using race, ethnicity or sex as criteria in public education.

“In the immediate aftermath of Proposition 209, there was one Black student enrolled in the entering class of UC Berkley law school that year," Epperson said. In the quarter century since that referendum, some schools in the state have increased geographic and economic diversity, but the statewide system does not reflect the racial and ethnic diversity of the state. This is particularly true of the most selective campuses, UCLA and Berkeley. In fact, the University of California filed a brief in support of race-conscious admissions policies in the Harvard and UNC cases before the Supreme Court, providing their own experience as a cautionary tale.

The Supreme Court customarily takes its summer recess after the last decision is handed down at the end of June or the beginning of July. There are only a few days left for the Supreme Court to release the decision over these two cases.