Is Affirmative Action Over? The Potential Impact of Two Supreme Court Challenges Explained

The Supreme Court is expected to issue a decision later this month in a consequential case that will determine the fate of affirmative action at colleges and universities.

Last fall, the court heard arguments challenging decades of precedent that have upheld the use of race and ethnicity as one factor among many that can be considered in the admissions process at colleges and universities. 

Ahead of the decision, Stacy Hawkins, vice dean and professor of law at Rutgers Law School and a senior faculty fellow at the Institute for the Study of Global Racial Justice, shares what is at stake and her prediction for the likely outcome.

What are the issues in the case before the Supreme Court?  

The Harvard and UNC cases pending before the Supreme Court seek to reverse four decades of precedent and prevent colleges and universities from ever considering race or ethnicity in admissions in any way and for any reason. 

Although the case against Harvard is filed ostensibly on behalf of Asian American students, and there is much made in that case about the fact that Asian Americans suffer discrimination in admissions at elite schools like Harvard, at the end of the day, the case is simply an attack on the practice of considering race in college admissions. 

Both the Harvard and UNC cases were filed by the same conservative activist (Edward Blum) who has been trying to get the Supreme Court to invalidate the use of race and ethnicity in college and university admissions since 2008 when he filed Fisher v. Texas, a case that also went all the way up to the Supreme Court. He lost that case in 2016 when the Supreme Court upheld the University of Texas’s use of race in admissions. Blum is banking on the fact that, with the appointment of three new conservative justices, he now has the votes to get the result he has always wanted but has never been able to achieve.

What was the crux of the arguments made last fall, and what do you think is the likely outcome based on the justices' response?

The arguments in the recent case were much like arguments in the Fisher v. Texas case. Although they varied slightly on behalf of the challengers across the Harvard and UNC cases, the crux of the claim is the same – colleges and universities should not be permitted to consider race in admissions. Both Harvard and UNC, of course, defend their use of race in admissions by pointing to the court’s 2003 case approving of the practice and arguing that so long as they conduct their admissions processes consistent with the limitations imposed in that case, the use of race is permissible.

During oral argument, all of the court’s conservative Justices seemed to accept the challenger’s position that race should not be directly considered in the admissions process. Most of their questions focused on what exactly it means to consider race in admissions and what other considerations might also be included as a part of any prohibition on the use of race in admissions, e.g., experiences of discrimination, status as the descendants of slaves, or other “proxies” for race.  While the court’s liberal Justices, most notably Ketanji Brown Jackson in the UNC case, focused on why race can and in fact should be a permissible consideration in the college admissions process. So, most court-watchers (myself included) are predicting a 6-3 decision in favor of the challengers in both cases given the court’s 6-3 conservative supermajority. It remains to be seen whether all of the conservative Justices will agree on a single rationale for the decision, but the outcome itself seems inevitable.

Can you tell us about the history of affirmative action: when did it start and how effective has it been?
 
Affirmative action traditionally refers to programs initiated by President John F. Kennedy in 1961, peaking in the 1970s, that mandate “affirmative action” by employers and other private institutions receiving federal funds, such as colleges and universities, in favor of women and racial/ethnic minorities as a means of redressing past discrimination against these groups.

By contrast, lots of people also refer to current efforts, whether in the workplace or in educational settings, that use race, ethnicity or gender to achieve diversity as “affirmative action.” These programs are often justified more by concerns for the instrumental benefits that accrue from diversity, such as enriching the learning or work environment with people from a variety of backgrounds, rather than from the remedial concerns that motivated “affirmative action” in the 1960s and 1970s.

Traditional affirmative action efforts have not been as widely studied as you might imagine, but the research that is available tends to show that at their inception in the 1960s and through their peak in the 1970s, these efforts did benefit Black men and women and white women by opening up jobs in the skilled trades as well as in professional and managerial workforces that had been previously closed to these groups. 

What is the implication for higher education?

It depends on whether the court does what many expect it will do, which is overrule longstanding precedent and say that colleges and universities may not consider race or ethnicity in admissions – even if it is necessary to achieve diversity. 

It also depends on how broadly the decision sweeps in overruling that precedent. It’s possible that the court will only say that you cannot use race and ethnicity in admissions no matter how necessary it may seem. That leaves open the possibility that colleges and universities can still articulate the benefits of diversity and seek to achieve those benefits in ways that do not involve the explicit consideration of race or ethnicity.

If, however, the court says that colleges and universities should not be pursuing student body diversity by any means, that changes the landscape much more dramatically. Valuing and promoting diversity has become such an integral part of how many colleges and universities pursue their educational missions that it would require a fundamental change in the way those colleges and universities operate. 
 
Are there implications beyond higher education, including for private employers?

Most legal commentators predict that the Supreme Court’s decisions in the higher education context will have clear application in the employment context. This is most especially true if the court takes a more restrictive view of the ability to consider race or ethnicity in trying to achieve diversity, or even to pursue diversity at all. 

Under existing employment law standards, there is probably already much less leeway for employers to consider race, ethnicity or even gender when making employment decisions, even in the interest of diversity. This possibility will simply become more restricted should the court overrule existing precedent and declare that diversity is not a legitimate end for institutions to pursue at all. It will be equally disruptive for employers, many of whom (just like colleges and universities) have embedded diversity into their institutional missions and operations.

What will happen if affirmative action is dismantled? What would a rollback look like and what would happen in colleges and workplaces?

If the court simply says colleges and universities cannot use race and ethnicity in admissions, then they are likely to continue to engage in “race-neutral” efforts to achieve diversity. These efforts can include increasing consideration of socioeconomic status, which is correlated with race and ethnicity. Race-neutral efforts also can involve targeting certain high schools for recruitment, which can yield greater racial and ethnic diversity given how racially segregated most American high schools continue to be. This approach has been adopted by both California and Florida, which are both prohibited from considering race and ethnicity in college and university admissions under state law. 

Because employers already have greater restrictions on how they can use race and ethnicity in making employment decisions, a narrow ruling by the Supreme Court restricting the pursuit of diversity to race-neutral means is not likely to have as large an impact on employers. However, if the Supreme Court goes further by saying that diversity is not even an interest institutions can pursue in a race-neutral way, then workplace diversity efforts will be upended as well and the inability to pursue diversity at all will have dramatic and far-reaching effects.