The End of Affirmative Action?

Written by Hannah Feeney

Introduction

The recent United States Supreme Court decision on affirmative action has sparked controversy across the nation and the globe. The 9-seat court concluded in a 6-3 majority that admissions policies at two universities, Harvard and the University of North Carolina, were unconstitutional according to the Equal Protection Clause of the US Constitution. As a result, universities across the US will have to alter their admission process, removing any ‘positive discrimination’ or affirmative action policies currently in place.?

What is Affirmative Action??

For decades American universities have had ‘race-conscious’ admissions policies in an attempt to increase the Black, Hispanic and minority ethnic student population in higher education.?

The policy of ‘affirmative action’ began being used in the 1960s to prevent widespread racism, sexism, and ableism and ensure minority groups were able to access employment and education opportunities.?

The concept is based on the premise that minority groups often face greater barriers to academic performance, for example, due to inequitable education and racist perceptions. As such, ‘positive discrimination’ can help to provide balance in the application process.?

The US Supreme Court has always played a key role in the policy with an earlier court’s decision serving as the basis for its introduction at many Universities. Grutter v.? Bollinger established the precedent of using race as a factor in the University admission process.?

That decision held that such policies at the University of Michigan Law School were in line with the Equal Protection Clause as it was not seen to “unduly harm non-minority applicants” (Sandra Day O’Connor). However, the Court’s view has evidently changed.?

What is this Recent Decision Based on?

The more recent case brought to the Supreme Court by an anti-affirmative action campaigner Edward Blum and his group Students for Fair Admissions, against the University of North Carolina (UNC) and Harvard University, has prompted a change in the Court’s approach.?

UNC only began admitting Black students in 1995 after it was ordered to by Federal Courts. In contrast, Harvard paved the way for affirmative action in US universities. They instituted affirmative action policies as early as 1978 and were cited by the Supreme Court at the time for their consideration of race in ensuring a diverse student population.?

The Students for Fair Admissions, however, claimed in this case that both Harvard and UNC were discriminating against Asian American students. Their sentiment was echoed in Chief Justice John Roberts decision for the court majority; "Many universities have for too long... concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the colour of their skin," he wrote. "Our constitutional history does not tolerate that choice."

The Chief Justice claims that in the earlier 2003 decision, Grutter v. Bollinger, which reaffirmed the use of affirmative action, it was asserted that it would become unconstitutional at a future date and that date has now been reached.?

However, the dissenting three justices; Justice Sonia Sotomayor, Justice Ketanji Brown Jackson and Justice Elena Kegan, along with several campaigners, strongly disagree. Justice Sotomayor, said the ruling "cements a superficial rule of colourblindness as a constitutional principle in an endemically segregated society”.

Supporters of affirmative action claim that the use of it is still necessary to increase minority access to ‘elite’ schools like Harvard. Moreover, in states where affirmative action has already been dropped, a noted decrease in the number of African American students has been identified.?

What does this mean??

A number of universities have since come out to say they will be reviewing their policies to ensure they act in line with the law. Many have added to this statement that it is ‘not the outcome’ they had ‘hoped for’.?

The practical implications of these policy changes across US academic institutions remains to be seen. It will likely take a different shape depending on the existing structures and motivations of each university. For example, some may seek to include ‘racial consciousness’ in a manner consistent with this judgement. For instance, by asking students to write an essay on the 'impact of their background’ as part of the application process. Such a move would be consistent with the recent ruling.?

In any case, the Supreme Court has dramatically altered the landscape of US higher education. The effect of this change will be seen in the coming years, and undoubtedly debate will continue.