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Leah Temple Lang / Gavel Media

The Fate of Affirmative Action

On Monday, October 31st, the Supreme Court of the United States heard arguments concerning the cases Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina; both cases were heard together and concern affirmative action in admissions practices in elite universities. They share the same plaintiff: Students for Fair Admissions, a conservative group focused on eliminating affirmative action practices. Affirmative action is defined as a set of procedures that are designed to eliminate and attempt to remedy unlawful discrimination among applicants in educational settings or in the professional sector. 

Previous cases on affirmative action heard by the Supreme Court have set precedent concerning affirmative action that Students for Fair Admissions hope to overturn. The first case that the Supreme Court heard on affirmative action was Regents of University of California v. Bakke in 1978. The court ruled that the quota system of affirmative action was unconstitutional, but that universities are able to consider race as a factor in admission in order to pursue diversity. Diversity can be seen as a "compelling interest" in educational benefits under the strict scrutiny test. Bakke introduced, in the words of Justice Powell, the "plus factor," which means that race can add a boost to a student’s application. Gratz v. Bollinger, heard in 2003, was also another important case concerning affirmative action. It ruled that the point systemthat being of a certain race added numerical value, or "points", to an application—was unconstitutional. This is because race, in this system, is not considered on an individual basis. However, the concept behind affirmative action was upheld in the majority opinion written by conservative Justice O’Connor, who stated that affirmative action was needed in 2003, but that it would most likely no longer be needed in 25 years.

To get an extra opinion on affirmative action in a legal sense, I spoke to my law professor, Professor Michael Cassidy, who includes these precedent-setting affirmative action cases in The Rule of Law in Understanding the Complex Meaning of Justice class curriculum. When asked about what it is like to teach affirmative action in a college course, he responded concerning both its difficulty but also its energy: "It is both energizing and challenging. Energizing because it is such an important public policy issue that touches all of our lives. Challenging because issues of race and class can cause some students to 'clam up' for fear of saying the wrong thing. Some students feel like these issues are dangerous to confront in a group situation, and they do not want to make any missteps that might subject them to criticism from their peers."

The central question argued by both of these new cases is whether any consideration in the college admissions process constitutes a violation of the Equal Protection Clause. Both cases claim discrimination against white students, but the Harvard case adds a claim of discrimination against Asian students. They both argue that affirmative action violates the EPC by discriminating against white, and in Harvard’s case, Asian students, and should thus be discontinued in the admissions process. The conservative majority of 6-3 that exists on the Supreme Court could very well affect the decisions of these cases, as the conservative Justices in the oral arguments make it very known that they are ready to end the practice of affirmative action. When asked about how his opinion has changed from previous cases to now, Professor Cassidy spoke about the issues confronted in these cases: "I know that the compelling state interest identified in Grutter was educational diversity. I wish they had directly confronted the reparations issue as well, because I think those two justifications combined make a stronger justification than either one of them separately. I was in favor of affirmative action twenty years ago, and I am still in favor today."

The main point of the conservative Justices is that the need for diversity is hard to measure, and Justice Thomas went so far as to claim that there is no need for diversity in education itself, comparing arguments for affirmative action to arguments in favor of segregation. However, the liberal Justices have their own arguments to make in favor of continuing affirmative action. Justice Jackson, the newest addition to the Supreme Court, brought up the idea that barring all consideration itself could instead violate the EPC, exactly the opposite of what Students for Fair Admissions were trying to accomplish. Justice Sotomayor also brought up the fact that the nine states who banned affirmative action saw stagnation or increases in white admissions, but the number of minorities admitted fell dramatically, emphasizing the continual need for affirmative action. Although the Court heard oral arguments on October 31st, deliberation most likely will take a long time, with the decisions scheduled to be released a few months from now. 

While the Supreme Court is expected to overturn affirmative action 6-3, the overturning of affirmative action could have many possible consequences. As Justice Sotomayor stated in her oral arguments, the states that overturned affirmative action had a sharp decrease in minority admittance rates. Ending affirmative action practices could also have negative effects on diversity in the workplace, especially concerning minorities and women. While it seems almost inevitable that SCOTUS will overturn affirmative action, amendments and future cases are important for the fate of affirmative action. Universities in the meantime may turn to economic affirmative action using zip codes as their main source of demographic information. Although the faculty at the Boston College law school often civilly disagree with each other on Supreme Court cases and rulings, "many faculty are seriously worried that Grutter will be reversed," according to Professor Cassidy.

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