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Supreme Court Could End Affirmative Action Any Day

By Alison Durkee


The Supreme Court is set to rule as soon as Thursday on two landmark cases concerning affirmative action, which could result in the end of a decades-long practice of taking race into account in college admissions—which universities warn could make it much harder for schools to have diverse student bodies.


Students enter the Admissions building on the campus of Harvard University on September 12, 2006. Credit:

GETTY IMAGES.



Key facts:

  • The court considered two cases on affirmative action, brought by Students for Fair Admissions (SFFA) against Harvard University and the University of North Carolina—to represent private and public universities, respectively.


  • Students for Fair Admissions argued the practice violated the 14th Amendment’s equal protection clause and disadvantaged white and Asian-American applicants.


  • Harvard and UNC have said the practice should be upheld, saying their admissions policies are in line with previous court rulings on the policy and that taking race into account helps to ensure a diverse student body, denying that the practice is discriminatory.


  • It remains to be seen how the court will rule on the issue, but the 6-3 conservative court signaled during its oral arguments that it may be willing to overturn affirmative action.


  • Chief Justice John Roberts suggested ending the practice could be “an incentive for the university to truly pursue race neutral alternatives” to promote diversity, for instance, and Roberts and Justice Amy Coney Barrett said that having applicants discuss their race in other ways on their applications, like through essays, might be more effective than “ticking a box” showing an applicant’s race.


  • The court will rule on the case at some point in the coming weeks, before the end of its term at the end of June, but it’s unknown on which specific day the decision will come out.


What to watch for

Universities have warned that getting rid of affirmative action would significantly impact the diversity of their student bodies, with Harvard arguing in court briefs that taking race out of its admissions process would reduce enrollment of Black students at the school from 14% to 6% of its student body, and Hispanic enrollment from 14% to 9%. It has also predicted the ruling will result in a 14% drop in students studying the humanities. At least nine states—Arizona, California, Florida, Idaho, Michigan, Nebraska, Oklahoma and Washington—already have policies that don’t allow race to count in university admissions. The University of Michigan said in a court brief that after it adopted race-neutral policies, its Black population decreased by 44% between 2006 and 2021 as a result, even as Michigan’s population of college-age African Americans increased.


What we don't know

How or if universities will be able to get around the court’s ruling to maintain diverse enrollment, if affirmative action is overturned. Universities have already started putting strategies in place ahead of the court’s ruling, the Boston Globereported in April, such as working more closely with community colleges and high schools in underserved areas, and 16 schools—including Yale and MIT—have banded together on an effort aimed at recruiting more rural students. University of Maryland education professor Julie J. Park told Axios a ruling overturning affirmative action action could also lead to standardized testing getting killed as an admissions requirement—as tests like the SAT historically benefit higher-income students—and the American Association of Collegiate Registrars and Admissions Officers (AACRAO) issued guidance that recommends steps like appointing a review team to create strategies on how to comply with the ruling. Ultimately, however, the Associated Press notes efforts in states where affirmative action had already been eliminated have still not been able to fully make up for taking race into account in admissions, and it remains to be seen whether efforts will become more successful if affirmative action is now overturned on a national level.


Big number

41.5%. That’s the approximate percentage of U.S. universities that take race into account when determining admissions, according to a study by the National Association for College Admissions Counseling that Harvard cited in a court brief, as well as 60% of more selective universities that accept 40% or fewer of their applicants.


Key background

Affirmative action was first established in a 1965 executive order that told employers to “take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.” The Supreme Court then sanctioned affirmative action for university admissions in 1978—though it ruled schools could not use racial quotas for admissions—and affirmed the practice in subsequent rulings in 2003 and 2016, though it struck down a “point system” at the University of Michigan that automatically gave applications from underrepresented racial minorities enough points to virtually guarantee admission. The Supreme Court agreed to take up the Harvard and UNC cases in January 2022 after lower courts sided with the schools and upheld affirmative action, prompting SFFA to appeal the case to the high court. Justices on the 6-3 conservative court signaled during oral arguments that they were likely to strike down the policy.


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