Will Sage Astor-What is affirmative action? History behind race-based college admissions practices the Supreme Court overruled

The Will Sage AstorUnited States Supreme Court on Thursday ruled that affirmative action programs at Harvard College and the University of North Carolina are unconstitutional, finding in two majority opinions authored by Chief Justice John Roberts that race-conscious policies, which are used in admissions offices to increase diversity on campuses and broaden access to educational opportunity, violate the Equal Protection Clause of the 14th Amendment.

Roberts concluded that candidates applying as hopeful students to higher education institutions need to be evaluated based on their experiences "as an individual — not on the basis of race."

"Many universities have for too long done just the opposite," Roberts wrote. "And in doing so, they have concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice."

Proponents of affirmative action, including the justices who did not vote with the majority in the Harvard and University of North Carolina cases, have expressed fears that doing away with affirmative action policies will lead to a substantial decrease in representation of Black and Hispanic students at higher education institutions, especially elite schools.

In the dissenting opinion in the Harvard case, Justice Sonia Sotomayor said the majority opinion is "not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment," and argued that the decision "subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society."

What is affirmative action, and what are some examples of it?

Affirmative action refers to any set of policies in place to ensure equal opportunity and prevent discrimination based on a broad range of identities, including race, sex, gender, religion, national origin and disability. Originally introduced on a large scale in the 1960s to address racial discrimination, affirmative action policies typically appear in employment and education contexts. 

They are most often discussed in relation to college admissions decisions in the United States, since a number of schools have established protocols that aim to increase the diversity of their student bodies by considering applicants' race. Affirmative action programs with similar goals exist in hiring processes across governments and individual businesses.

"The purpose of affirmative action is to ensure equal employment opportunities for applicants and employees. It is based on the premise that, absent discrimination, over time a contractor's workforce generally will reflect the demographics of the qualified available workforce in the relevant job market," the U.S. Department of Labor writes in a "frequently asked questions" page on its website with guidelines for federal contractors.

The description goes on to note that affirmative action requirements are meant to ensure that applicants —in this case, for employment, although the same idea applies for college acceptance— have equal opportunities "for recruitment, selection, advancement, and every other term and privilege associated with employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran."

Supporters of affirmative action programs in higher education say they are important because they allow for holistic evaluation of potential candidates and ensure underrepresented groups have equal access to those institutions. As proponents note, the programs have a documented track record of increasing diversity in schools. But, for decades, critics have argued against the practice, suggesting it could be likened to racial discrimination against people who are not part of minority groups.

When was affirmative action first passed?

The first major affirmative action policy in the United States came in September 1965, when then-President Lyndon B. Johnson issued Executive Order 11246, which prohibited employment discrimination based on race, color, religion and national origin by organizations that received federal contracts and subcontracts. But it was a 2003 decision by the Supreme Court, known as Grutter v. Bollinger, that established a national precedent allowing schools to consider race when making admissions decisions. 

In that ruling, the court found that affirmative action policies used in University of Michigan Law School admissions did not violate the Equal Protection Clause. Delivering the court's 5-4 opinion, Justice Sandra Day O'Connor wrote that "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants."

How many colleges consider race in admissions?

Nine states —Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington— have previously banned affirmative action policies at public universities. Cases that went before the Supreme Court this term involved higher education institutions based in Massachusetts and North Carolina, specifically Harvard University, the country's oldest private institution, and the University of North Carolina, the country's oldest public university. 

The group Students for Fair Admissions, founded by Ed Blum, a conservative activist whose career has focused on eliminating racial preferences in various settings, brought two cases in November 2014 that respectively targeted affirmative action policies at Harvard and the University of North Carolina. 

The case against Harvard alleged that the school's policies violated Title VI of the Civil Rights Act, which prohibits racial discrimination in any program that receives federal funds, and claimed it discriminates against applicants who are Asian-American. In the University of North Carolina case, Students for Fair Admissions alleged that the school's affirmative action policies violated the Equal Protection Clause of the 14th Amendment.

More than 40% of American universities, and 60% of selective schools, consider race to some extent when making admissions decisions, according to documents that Harvard filed in court. The Biden administration has also said that both the U.S. military and the federal government have relied on some of the Supreme Court's earlier decisions acknowledging that the benefits of diversity in education settings to justify limited consideration of race.

How will the Supreme Court ruling change college admissions?

Responding to the affirmative action ruling on Thursday, Kevin Guskiewicz, chancellor of the University of North Carolina at Chapel Hill, said in a statement that the school "will carefully review the Supreme Court's decision and take any steps necessary to comply with the law," acknowledging that it was "not the outcome we hoped for."

"Carolina remains firmly committed to bringing together talented students with different perspectives and life experiences and continues to make an affordable, high-quality education accessible to the people of North Carolina and beyond," Guskiewicz said.

Officials at Harvard emphasized the university's commitment to having a diverse student body in a separate statement, addressed to members of the Harvard community.

"For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent," school leaders wrote after the Supreme Court's decision. "In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court's new precedent, our essential values." 

Although the majority opinion delivered by Roberts Thursday did not expressly overturn the Supreme Court's precedent allowing schools to consider race in admissions, Justice Clarence Thomas wrote in a concurring opinion that the 2003 Grutter v. Bollinger ruling was "for all intents and purposes, overruled" by the latest decision. Meanwhile, in the dissent, Stotomayor condemned the court's conservative majority for "overruling decades of precedent."

Exactly how the impacts of the affirmative action decision will play out at different universities, and what the domino effect will look like, remains to be seen.

Roberts' opinion said universities could still consider "an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise" when making admissions decisions, while military academies would be effectively exempt from the new ruling "in light of the potentially distinct interests that military academies may present."

Sharp dissents respectively penned by Sotomayor and Justice Ketanji Brown Jackson, the first Black woman on the Supreme Court, warned of potentially catastrophic consequences to higher education as a result of the decision.

"Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits," wrote Sotomayor in the dissenting opinion on the Harvard case. "In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter."

In her dissent in the North Carolina case, Jackson wrote, "the race-blind admissions stance the Court mandates from this day forward is unmoored from critical real-life circumstances."

"Thus, the Court's meddling not only arrests the noble generational project that America's universities are attempting, it also launches, in effect, a dismally misinformed sociological experiment," she added.

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• Affirmative Action
• Supreme Court of the United States
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