This summer, the U.S. Supreme Court’s Republican-appointed majority is anticipated to end affirmative action, which for decades has sought to remedy a bruising legacy of discrimination against marginalized groups, including Black Americans.
Nearly 10 years ago, Students for Fair Admissions, an organization headed by Edward Blum, a stockbroker turned conservative legal strategist, filed lawsuits against Harvard University and the University of North Carolina, claiming that their undergraduate admissions practices are racially discriminatory. The lower courts sided with the defendants, but the high court in the coming weeks is expected to say that schools are barred from considering race when reviewing applications.
The two cases — Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina — don’t really tread new territory. But they arrive as the court is the most conservative it’s been since the 1930s and at a moment when diversity efforts are already under siege across the U.S. Just this week, Republican Gov. Ron DeSantis signed a bill defunding diversity, equity, and inclusion programs at Florida’s public colleges. In Texas, GOP officials are attempting to roll back initiatives aimed at diversifying state campuses.
Opponents of race-conscious policies believe that this environment provides them with a chance to overturn affirmative action. A broad ruling could eliminate the practice in higher education and even widen the college-going gap between Black and white Americans.
“What’s likely is that the court is simply going to gut affirmative action and decide that all affirmative action policies are unconstitutional, or that trying to achieve diversity on campuses isn’t a compelling interest,” explained Donald Harris, associate dean for academic affairs and the equity, diversity, and inclusion liaison at Temple University Beasley School of Law. “If that happens, I think that we’re in for a very long, hard road.”
Here’s a closer look at the knotty history of race-conscious policies and the potential consequences if the court strikes them down.
What are the origins of affirmative action?
Affirmative action — the way we think about it today, with a central racial component — grew out of a recognition during the civil rights movement that simply stopping de jure segregation wasn’t enough to address centuries of discrimination in employment and education.
The federal government sought to nurture racial equality in employment through various directives. In 1961, via Executive Order 10925, President John F. Kennedy demanded that government contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” Four years later, in 1965, President Lyndon B. Johnson signed Executive Order 11246, which empowered the secretary of labor to manage affirmative action provisions.
Affirmative action expanded toward education later in the decade, when universities began to use race-conscious policies to increase the enrollment of Black students, hire more Black professors, develop Black studies programs, and generally boost racial diversity on campuses.
“Having the ability to consider race in the admissions process, even at a minimal level, has helped institutions achieve levels of diversity that I think most of them would argue have been beneficial to the learning environments they’re trying to create,” said Bryan Cook, the director of higher education policy in the Center on Education Data and Policy at the Urban Institute.
Experts pointed out that affirmative action has been accompanied by a variety of myths. Maybe the most pernicious is that it extends access to unqualified Black people and disadvantages white people.
“Affirmative action isn’t about discriminating on the basis of race. It’s a recognition of experiences that certain racial groups have had,” explained Zamir Ben-Dan, an assistant law professor at Temple University. “And it’s an attempt to remedy those experiences by increasing opportunity for groups who’ve historically lacked opportunity, and who continue to lack opportunity because of ongoing discrimination.”
Harris echoed these sentiments, and also underscored the ignorance of critics’ complaints.
He stressed that when people characterize affirmative action as “reverse discrimination,” they fundamentally misunderstand the logic behind the practice, and only foment resentment. Further, he went on, they fail to acknowledge the built-in preferences white people have long enjoyed.
“When you have a policy that benefits legacies — those are the kids of people who went to a certain school — and when you have a school that limited admission to white men or to white people, then necessarily you’re going to be preferencing white folks. But no one has a problem with legacies,” Harris noted. “No one has a problem with donors, with people giving millions of dollars and their kid happens to get in. The majority of people with the resources to do that are white. No one complains about that, either.”
In short, he said, what’s troubling is the fact that people seem to take issue with the one policy designed to address discrimination — and not with anything else.
Have we seen resistance to race-conscious policies before?
Affirmative action has been under attack almost since its inception, though the high court has repeatedly backed universities’ use of race in admissions.
For instance, in 1978’s Regents of the University of California v. Bakke, the court examined the University of California’s quota system. UC Davis’ medical school had set aside 16 out of every 100 seats for minority applicants. Allan Bakke, a white man who’d been rejected by numerous medical programs, said that the system was unconstitutional. Even though the court ruled that quotas were impermissible, it found that diversity is a compelling interest and that schools can take race into account as long as it’s one of many factors.
In 2003 came both Gratz v. Bollinger and Grutter v. Bollinger. The cases involved lawsuits brought by white applicants who’d been rejected by the University of Michigan. Jennifer Gratz and Patrick Hamacher sued over the university’s use of a points-based undergraduate admissions system that automatically gave 20 points to minority applicants, and Barbara Grutter sued over being denied admission to the law school. The court decided that the points system wasn’t allowed but in Grutter said that race could be given attention in a narrowly tailored way.
Affirmative action was challenged in the court again 10 years later, in Fisher v. University of Texas (2013 and 2016). Abigail Fisher, a white woman, was rejected by the University of Texas, which, at the time, automatically accepted Texas students who ranked in the top 10% of their graduating class. To fill the remaining slots for an incoming cohort, the school considered factors such as race; Fisher sued over this discretionary dimension. The court found that the school’s admissions program was constitutional.
Notably, per Ben-Dan, you can detect anti-affirmative action thinking as far back as the immediate aftermath of Reconstruction, in the court’s comments regarding 1883’s landmark Civil Rights Cases.
“When a man has emerged from slavery — and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state — there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws,” Justice Joseph P. Bradley wrote.
Those remarks could’ve been made today, Ben-Dan argued. The court’s Republican-appointed justices, he said, seem all too eager to act as if a problem has been solved, when an honest assessment of the situation shows the precise opposite.
What could be the impact if the court eliminates affirmative action?
We don’t have to look too far to see how striking down race-conscious policies could alter the higher education landscape.
Nine states — Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington — already ban affirmative action, and universities in these states have struggled mightily to get diversity to the levels they’d previously enjoyed, according to Harris.
“What they’ve tried to do instead is implement race-neutral policies to try to achieve diversity without considering race. And, frankly, they’ve failed miserably. There really is no race-neutral way to achieve what you can if you take race into account. There just isn’t,” he said. “So, I think that we’re going to see a steep drop-off in students of color at schools. It’s not clear how far the court wants to take the issue — whether this will affect only the undergraduate level, or bleed into the graduate level — but I’ve got to believe that the court took this case to prohibit affirmative action policies broadly, and will take this as far as it can.”
A 2023 study conducted by Georgetown University’s Center on Education and the Workforce backs up Harris’ comments. Researchers found that if the court bars the consideration of race in college admissions, selective institutions will be “extremely unlikely to enroll student bodies that come close to mirroring the demographic diversity of the high school class,” unless these schools pursue a “complete transformation” of how they review applications.
Gutting affirmative action could affect more than enrollment numbers, though. Cook said that he’s heard that conservative groups are targeting things such as affinity graduation ceremonies and Black Greek letter organizations, so he wonders how a restrictive court decision could further shape Black students’ experiences.
“Even the environments that exist, particularly on selective campuses, that provide some semblance of cultural comfort for minority students are under attack,” he said. “It’s not just that we could start having less racial and ethnic diversity at schools. For those who are there, the campus experience could start to become very different.”