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If Affirmative Action is Dead, What Now? Part 1

Updated: Dec 20, 2023

Affirmative action supporters and counterprotesters shout at each other outside the U.S. Supreme Court building in Washington,D.C., June 29, 2023.; Kent Nishimura | Los Angeles Times | Getty Images

Part 1 of 2


Hi all! My name is Sanaa. Welcome to the very first edition of Let’s Talk, an online platform for sharing information, personal storytelling, and insights on topics that affect and shape our communities, our society, and our world. Some conversations will be serious, some inspiring, and some might even be funny. My goal is to talk candidly about issues that matter. Now, a bit about me. I am a sociology major, currently in my fourth year at Arcadia University in Pennsylvania. I am African-American and originally from Philadelphia, PA. That said, as a senior, looking back on my time at Arcadia, I’m thankful for the opportunities I discovered. However, the recent U.S.Supreme Court decision striking down affirmative action in college admissions caused me to reflect on its possible impact, and on my own college journey, which has been challenging at times, but ultimately worthwhile. At the beginning of my freshman year, I experienced a profound culture shock. I had been a minority in several spaces before, but in university my experience was very different. There have been times when my presence was flat out ignored, or classes where a student spoke over me to drown out what I was saying. Frequently, I felt I didn’t belong. Yet, I persevered. My goal then and now is earning my degree, so I can pursue my dreams. Given the Court’s decision, the opportunity for some to pursue their dreams may be in real jeopardy, especially for Black, Latino, and Native American students. How will colleges achieve a diverse student body in this new reality? Let’s look at how we got here and why it matters. The U.S. Supreme Court’s Decision Explained On June 29, 2023, the U.S. Supreme Court struck down affirmative action in higher education. In a sweeping 6:3 opinion written by Chief Justice John Roberts, the Court stated that any American university, both public and private, that accepts Federal funding, can no longer consider race as a factor when making admissions decisions. This ruling was the culmination of years of efforts to limit and ultimately dismantle affirmative action. However, for decades, many institutions of higher learning used this policy to achieve a student body that reflects the diversity of our society and to make amends for past and ongoing race discrimination

The Supreme Court ruled that in two separate, but related cases, Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College and Fair Admissions, Inc. v. University of North Carolina (UNC), those schools’ admissions processes violated Title VI of The Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment. SFFA, a non-profit advocacy organization, founded by Edward Blum, a Jewish-American activist, brought the lawsuit on behalf of several Asian-American students who claimed that Harvard and the UNC’s admissions policies unfairly discriminated against them by favoring white students. Notably, unlike prior affirmative action cases, another minority group–Asian rather than white applicants– claimed lack of fair representation and equal protection under the law. Harvard’s and UNC’s rebuttal was that it was within their legal rights to use race-based admissions policies in the pursuit of student diversity, as it had been upheld in Grutter v. Bollinger, 2003.

Historical Context and Judicial Precedent

To understand this decision, we need historical context. Brown v. Board of Education,1954 helped establish the landmark Civil Rights Act of 1964, signed into law by President Lyndon Johnson, which banned discrimination on the basis of race, color, religion, sex, or national origin in employment, public accommodations, and federally funded programs. Affirmative action in higher education resulted to rectify the history of legally enforced segregation, race-based exclusion, and quota systems that capped the number of non-white or other minority students. The goal was also to recognize structural barriers that some individuals may have that others may not, such as socioeconomic status or parental education level. Several cases followed that set the framework for race-based admissions. Affirmative action was predicated on the protection of the rights of “qualified applicants” to afford them an equal opportunity. Over time, it has been misconstrued to mean affording unqualified individuals preferential entry, but that is not accurate.

In the SFFA opinion, Roberts referenced the precedent set by the 1978 watershed case Regents of University of California v. Bakke, in which the U.S. Supreme Court declared affirmative action constitutional, but that race could only be used as a “plus” part of a comprehensive review of the applicant. Bakke also ruled that the positives of diversity on campus constituted a compelling state interest, fulfilling the first half of strict scrutiny, a narrowly tailored exception to the Equal Protection Clause. Because affirmative action is related to a government entity and the consideration of race, it is subject to strict scrutiny (Fisher v. U of Texas (2013). The 1978 Court also found that the use of racial quotas in the admissions process was unconstitutional, as it violated the white male plaintiff’s rights under the Equal Protection Clause and Title VI. In the June ruling, the Court found that Harvard’s and UNC’s admissions policies failed strict scrutiny, and therefore were unlawful.

The majority opinion focused on prior precedent. Roberts wrote that the defendants’ race-based admissions policies did not meet Grutter's and Bakke’s criteria of non-stereotyping, precise and narrow categories of race, have a “logical or planned endpoint'' (which Grutter arbitrarily set at a 25-year limit), or demonstrate their stated compelling interests such as training future leaders, enhancing empathy and inter-racial understanding, and producing new knowledge, in a judicially measurable way. In addition, the Court rejected Bakke’s conclusion, instead ruling that by using race as a “plus” factor, the defendants “unavoidably advantaged some applicants based on race at the expense of others.” As a result, the Court found the programs had violated the Equal Protection Clause. However, the Court also allowed that nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that particular applicant can contribute to the university.

”Colorblind Constitutionalism”-A Theoretical Basis for the Ruling

Roberts’ opinion was grounded in a theory called colorblind constitutionalism. Given how the Constitution categorized enslaved Blacks in 1787 in the three-fifths clause, Robert’s position deserves a degree of skepticism. In their dissent, Justices Ketanji Brown-Jackson, Elena Kagan, and Sonya Sotomayor argued that our society never has been, nor is now “colorblind.” They further opined that “with the passage of the 14th Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal.” In a real sense, the Framers of the 14th Amendment were the originators of affirmative action.

Is Equal Opportunity One-Size Fits All?

In closing, some things to ponder: Except for SFFA, all these cases bring up questions surrounding so-called reverse racism. Is it a valid argument? Is it discriminatory or racist to prioritize a marginalized group for educational opportunities when for decades that group has not had access to the same opportunities that non-marginalized groups have enjoyed? Almost everyone agrees that there should be equal opportunity. But why expect equal results when not everyone is able to walk the same path to get there? Everyone deserves the chance to succeed, but not everyone can go the same route. In Part 2, I will dive into the repercussions of this decision and explore solutions. Hope you’ll join me next time.

Sanaa Scott-Wheeler is a senior, majoring in Sociology at Arcadia University in Glenside, PA. She has a special interest in traveling the world, expanding her knowledge of different. cultures, theater and film, and is studying acting at Playhouse West Philadelphia.


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