On Monday, the Supreme Court will hear oral arguments in two cases that could end the practice of affirmative action in higher education admissions, which facilitates wider diversity among students.

The cases, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (UNC), are the latest test in a decades-long effort to end schools’ ability to consider an applicant’s race among many factors in the admissions process.

With the high court’s 6-3 conservative supermajority, experts told The 19th that the justices are poised to undo legal precedent that has protected affirmative action for more than 40 years. This comes amid other legal and political challenges to diversity efforts in schools, such as teaching about race and LGBTQ+ issues.

Women represent about 60 percent of enrollment in universities and colleges around the country. Among Black students, women make up about 64 percent of bachelor’s degrees and 71 percent of master’s degrees. College-degree attainment for Latinas also outpaces Latinos. About 27 percent of Latinas have a college degree compared to about 21 percent of Latinos. As a result, any decision the Supreme Court makes on affirmative action will disproportionately impact women of color.   

Advocates for equity in education are concerned about what the upcoming decision could mean for groups of qualified students who are already underrepresented in the country’s most competitive schools.

“Eliminating all signs of race from the admissions process will unfairly disadvantage applicants of color,” Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund, told reporters in a press call Tuesday. “That deprives all students of the ability to tell their full stories and bring their whole selves to the admissions process.”

Ahead of the arguments before the Supreme Court, The 19th spoke with education policy experts about the history of affirmative action and the significance of these latest cases.

What is affirmative action?

For years, companies, government agencies and educational institutions have been able to consider an applicant’s race, gender or disability status while making hiring, contracting or admissions decisions.

“It’s really a recognition that we are working in a society where there are structural barriers to people of different races and genders progressing in their economic life and their educational life and so forth,” said Lourdes Rosado, president of LatinoJustice, a national civil rights organization. “So affirmative action is just a way to sort of level the playing field that has historically not been even.” 

LatinoJustice and co-counsel Brown Rudnick LLP filed an amicus brief supporting race-conscious admissions at Harvard College and the University of North Carolina.

The term “affirmative action” has been linked to Executive Order 10925, which President John F. Kennedy issued on March 6, 1961. The order stipulated that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” 

At that time, the country was in the midst of the civil rights movement to give Black Americans their full rights as citizens. Throughout the 1960s, affirmative action programs became widespread both in the federal government and in higher education institutions. 

Initially, White academic institutions launched very small affirmative action programs, often admitting fewer than 20 students, said Natasha Warikoo, a sociology professor at Tufts University and author of “Is Affirmative Action Fair?” Over time, the programs expanded, with many selective colleges and universities implementing affirmative action programs by the late 1960s.

In 1967, President Lyndon B. Johnson included gender in the federal government’s practice of affirmative action. Gender was also an important consideration for colleges and universities, which had historically excluded women. 

Today, however, women make up a majority of college students, and Black and Latina women are much more likely than their male counterparts to be represented in higher education.

What has happened in previous court challenges to affirmative action?

Affirmative action programs saw legal challenges not long after they were first implemented. In 1978, the Supreme Court heard Regents of the University of California v. Bakke.  

Allan Bakke, a White man, claimed that he had been racially discriminated against after the UC Davis School of Medicine denied him admission. At that time the school reserved 16 out of 100 total seats in the medical class for students of color. In a split decision, the court struck down the medical school’s quota system as discriminatory.

While setting specific racial quotas would no longer be allowed, a majority of the justices maintained that considering race in the higher education admissions process as a way to promote diversity was still permissible.

“You can’t do it mechanistically as in quotas, or you can’t, if you have a point system, give underrepresented minorities a certain amount of points because they are part of those racial groups,” Warikoo said. “But if you’re sort of using race in the context of a larger, broad look at somebody’s biography, then you’re allowed to do that.”

In 2003, Barbara Grutter, a White resident of Michigan, asserted that she was denied admission to the University of Michigan Law School because of her race in Grutter v. Bollinger.

The court considered whether the use of racial preferences in student admissions violated the Equal Protection Clause of the 14th Amendment or Title VI of the Civil Rights Act of 1964. Ultimately the court rejected Grutter’s claim and upheld affirmative action.

The more recent challenges have been spearheaded largely by one conservative man, Edward Blum. For nearly three decades, Blum has worked to find plaintiffs to challenge policies he wants struck down.

“He’s just one of many individuals who have been on the slow and steady march to get rid of a lot of the gains of the civil rights movement,” said Jamel Donnor, a professor of education policy and law at William & Mary. “He’s been moving parallel with the liberal conservative movement, particularly the Federalist Society, and trying to reconfigure the Supreme Court.” 

Blum’s efforts included working with Abigail Fisher, who would go on to be the face of two arguments brought before the U.S. Supreme Court in 2013 and 2016. Fisher, a White woman, was denied admission to the University of Texas and alleged that the university’s race-conscious admissions process discriminated against her. 

Both times the court upheld the university’s ability to consider race as a factor in admissions.

What is happening with the two current cases against Harvard and the University of North Carolina?

Blum is once again at the center of two cases pushing for the end of affirmative action. 

“He realized that Asian Americans were a group that had not been involved in a high-profile case. He thought there could be an alignment of interests with them and so he recruited a group of plaintiffs to come create this organization called Students for Fair Admissions,” said Julie J. Park, an associate professor of education with the University of Maryland, College Park who also served as a consulting expert in the Harvard case.

Blum created the nonprofit Students for Fair Admissions (SFFA) and it represents an estimated 20,000 students and parents, many of whom are Asian Americans.

By filing similar cases against Harvard and UNC in 2014, SFFA can cover nuances in the law that affect private and public universities in different ways. As a public school, the University of North Carolina is directly bound by the requirements of the Equal Protection Clause of the 14th Amendment.

When it comes to private universities, Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding from violating the Equal Protection Clause; this includes Harvard University.

“They’re trying to put a bow on this and get a one-two combination punch on affirmative action,” Donnor said. “If you look at prior cases, they primarily focused on public institutions. This is the first time we have a lawsuit against a private institution.”

In both cases SFFA argues that Harvard and UNC are violating the Equal Protection Clause by failing to consider race-neutral alternatives that could also increase diversity in the student body without putting specific racial groups at a disadvantage.

“The argument that people are making and that is accepted and actually promulgated by members of the court, including Justice Roberts, is that the Equal Protection Clause requires colorblindness or sometimes they also call it race neutrality,” Rosado said. “I, and many civil rights activists, think that that’s wrong.” She added that the 14th Amendment was “designed specifically to make people with less opportunity and less rights equal to White citizens.”

Harvard, which has become one model for race-conscious admissions, said that its competitive pool of more than 60,000 applicants for 2,000 available slots means that Harvard College must consider factors beyond grades and test scores to select incoming classes. 

The school’s website details what they call a “whole person review” that considers essays, teacher recommendations, test scores, extracurricular activities, race and life experiences among other factors.

What happens if the Supreme Court bans affirmative action?

Should the court decide to end affirmative action, Warikoo said that California offers insight into what the country would look like without this diversity policy. In 1996, residents there voted to end affirmative action, resulting in the nation’s most populous state becoming the first to ban the practice. 

Today, nine states ban affirmative action. In addition to California, they include Michigan, Washington, Florida, Nebraska, Arizona, New Hampshire, Oklahoma and Idaho. “We know that when you end affirmative action that leads to year-on-year declines of Black, Latino and Native American students,” Warikoo said. “We know that that then has a knock-on effect on enrollment in graduate programs. We get fewer graduate degrees in these groups.”

After the state’s affirmative action ban took effect, Black student enrollment at the University of California, Los Angeles, dropped from 7 to 3.43 percent. As of 2019, however, the number rebounded to 5.98 percent, which is almost on par with California’s 6.5 percent Black population.

After Michigan banned affirmative action in 2006, the percentage of Black students in public colleges and universities dropped from 7 percent to 4 percent in 2021. College-age Black Americans make up 19 percent of the state’s population. Native Americans enrolled in Michigan’s public colleges and universities also fell during this timeframe, slipping from 1 percent to 0.11 percent in 2021.

Declines in students of color enrolled in public colleges and universities are particularly harmful in areas such as medicine, in which racially diverse groups of patients benefit from health care personnel who can provide culturally responsive care, Warikoo said. She added that fewer people of color in higher education also results in lower wages for these individuals.  

Rosado predicted that initially there will be a drop-off in Black and Latinx students at elite colleges and graduate schools.

“I think it’s going to be highly, highly, highly problematic and difficult for students of color, who historically are over-represented in highly segregated schools that don’t have the same resources as other mostly White schools in this country, to gain access to these elite institutions,” Rosado said.

In its lawsuit, SFFA asserts there are race-neutral approaches to school diversity, but experts told The 19th they do not adequately address racial injustice like their race-conscious counterparts. 

For example, in an effort to expand higher education enrollment of Black and Latinx students, the state of Texas in 1998 implemented a policy that guaranteed acceptance to selective public universities to all students who graduated in the top 10 percent of their class. 

Research indicates, however, that this system did not notably increase the rate of students from underrepresented groups attending those schools.

What are common misconceptions about affirmative action?

Affirmative action and race-conscious admissions can often be complicated and lack transparency, which can lead to a lot of public misunderstanding, experts told The 19th.

People may associate race-conscious admissions with having a quota system, but such a practice would be illegal, Park of the University of Maryland said.

As more information about Harvard’s process has emerged in the news, some details have been misconstrued, Park said. For example, the school has faced criticism by SFFA for its lower “personal rating” of Asian-American applicants, which has been likened to an assessment of their personality traits. On its website dedicated to the case, Harvard said this rating includes a variety of components like the essay and recommendations from teachers and counselors and alumni interviews.

Another misconception about affirmative action is that all students of color benefit from the policy. That is not always the case, because there are students from underrepresented groups who would have been accepted in a color-blind process, Warikoo said. 

Moreover, while debating whether or not affirmative action constitutes so-called reverse racism, people tend to overlook that the policy exists to right historic wrongs, she added. 

“We kind of lose sight of the racial justice piece — the fact that we have racial inequality in the United States, and these universities were built on slave labor often or certainly at a time of racial exclusion,” Warikoo said. “So, it’s important to recognize that these universities owe it to, particularly, African Americans, Native Americans and also immigrant groups that have been affected by U.S. involvement in foreign wars.”