Let’s Talk About It, Once and For All: Affirmative Action

By: Haneefah Saleem

“There’s all kinds of Affirmative Action,” “There’s legacy, there’s the college athletes … Universities have a right and an interest in diversifying – the problem is that when it comes to students of color, poor kids, all of a sudden that’s ‘Affirmative Action’ and that’s a problem.[1]

– Michelle Obama

Since its adoption in the 1960s, Affirmative Action has been a heated area of discussion among the American people. While critics have long held that Affirmative Action’s social utility is dubious because it devalues the actual accomplishments of people who are chosen based on the social group to which they belong rather than their qualifications, the Supreme Court has taken a stance to affirm Affirmative Action’s constitutionality.

In 1978, the Court first upheld Affirmative Action in Regents of the University of California v. Bakke, declaring Affirmative Action constitutional under the Equal Protection Clause of the Fourteenth Amendment.[2] However, in recent years, as the Court’s bench changed and new Justices emerge, the fate of Affirmative Action is not as safe as it once was. Recently the Supreme Court agreed to hear two cases that could spell the end of race-conscious admissions policies.[3]

The two cases that will be heard by the Court focus on the racial discrimination against Asian students during the admissions process.[4] Conservative activist group, Students for Fair admissions first targets Harvard, challenging the tools used to admit minority students.[5] Specifically challenged, are the personality tests that rank characteristics such as likability, courage, and kindness among minority groups.[6] More plainly put, the test examines that “if a group of three minority students were put into a room, which student would foster the most diverse conversation?” and then concludes that Asians would add the least value to that conversation (Jay Caspian King).[7] Harvard’s alleged personality test has received criticism from not only those who oppose Affirmative Action but supporters of Affirmative Action who are frustrated with Harvard’s reliance of such vague tests.[8] Supporter’s frustrations are further fueled by Harvard’s actions which allow the Student for Fair Admissions to again present the consideration of race in admissions to a new bench.[9]

Accompanying the Harvard case, the Supreme court will also address the claims of the University of North Carolina’s recent discrimination against Asian Americans.[10] Here, the more familiar argument is made by both Asian and white students who claim that Black and Hispanic, and Native American applicants were given preference over their applications.[11]

Ed Blum, who led the Student for Fair Admissions is a conservative activist, carefully crafted the Student for Fair Admissions group and brings this suit during a pivotal point.[12] As the past Justices that have supported the legality of Affirmative Action have been replaced, it has been suggested that the Court’s view has begun to shift on issues such as abortion and Affirmative Action – both issues that will be heard during the Court’s next term.[13] Blum carefully handpicked two schools both public and private to be heard together in hopes of removing race-based consideration from the admissions process, stating: Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group.”[14] This suit being brought during this time is significant and tactical political move among conservatives. 

Recently the Supreme Court’s top supporters of Affirmative Action have been replaced on the Bench.[15] Justices Powell, O’Conner, and Kennedy who led the majority opinion in notable Affirmative Action decisions are now superseded by Justices Gorsuch, Kavanaugh, and Barrett.[16] As the public awaits the Court’s decision, critics and supporters of Affirmative Action anxiously reiterate their arguments for race-based consideration in amicus briefs and podcasts discussions. This highly controversial topic will test the newly bolstered conservative majority’s commitment to standing precedent. 

[1] BECOMING (Netflix 2020).

[2] Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).

[3] Adam Liptak & Anemona Hartocollis, Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C., NY TIMES (Jan. 24, 2022), https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-action-harvard-unc.html

[4] Id

[5] Nina Totenberg & Eric Singrman, The Supreme Court adds Affirmative Action to its potential hit list, NPR (Jan. 24, 2022), https://www.npr.org/2022/01/24/1003049852/supreme-court-adds-affirmative-action-to-its-potential-hit-list

[6]  Supra note 3.

[7]The Argument: Affirmative Action Isn’t Perfect. Should we Keep it anyway?, NY Times Opinion (downloaded using app store).

[8] Alia Wong, Harvard’s Impossible Personality test, THE ATLANTIC, (June 19, 2018), https://www.theatlantic.com/education/archive/2018/06/harvard-admissions-personality/563198/

[9] Id.

[10]  Supra note 3.

[11] Id

[12] Supra note 5. (Prior to assembling the Student for Fair Admissions, Blum also spearheaded attacks on the 1965 Voting Rights Act, culminating in the court’s 2013 decision in Shelby County v. Holder, essentially dismantling the law.). 

[13] Id.

[14] Supra note 3.

[15] Amy Howe, Court will hear challenges to Affirmative Action at Harvard and University of North Carolina, SCOTUSBLOG (Jan. 24, 2022, 11:44 AM), https://www.scotusblog.com/2022/01/court-will-hear-challenges-to-affirmative-action-at-harvard-and-university-of-north-carolina/(Justice Anthony Kennedy wrote for the 4-3 majority in Fisher v. University of Texas, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. The composition of the court has changed significantly since then. Thus, it was a much more conservative Court that considered the latest petitions).

[16] Id.

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