IS THE SUN SETTING ON AFFIRMATIVE ACTION?

by TOMAS VALLEJO STAFF WRITER

Almost10 years ago, an anti-affirmative action group called Students for Fair Admissions filed a case against Harvard University and the University of North Carolina. The group claimed that both institutions discriminate against white and students of Asian descent in their admission processes in favor of students of other racial backgrounds. While the original cases were first filed in 2014, they were heard by the Supreme Court (SCOTUS) last year and are expected to reach a decision by this summer. It is suspected that lawsuit against the Topeka school district for not allowing an African American girl to attend a local white school. The NAACP argued that segregation was a violation of the 14th Amendment’s equal protection clause which declared that no state could abridge the rights of a citizen without due process of the law, “nor deny to any within its jurisdiction the equal protection of the laws.” After listening to the NAACP’s argument, The Supreme Court unanimously decided in Brown v. Board of Education that segregation in academic institutions was inherently unequal and unconstitutional. rights movement, many academic institutions used race as a factor in their admissions processes, however, they had quotas in place to determine how many spots were available. This practice was put to the test in Regents of the University of California v. Bakke when Alan Bakke, a white man, was denied admission into the University of California at Davis’s medical school. At the same time, the medical school reserved 16 spots for qualified students of color. SCOTUS ruled in favor of Bakke, deciding that UC Davis’s quota system was unconstitutional, however, the court recognized that schools could consider race in their admissions as long as it was one of many factors considered. due to the court’s conservative majority, affirmative action policies will effectively come to an end or at least be rolled back. Whatever decision

SCOTUS reaches will have a drastic impact on university admissions across the country.

The battle for affirmative action policies has a long history, starting in 1952 when the National Association for the Advancement of Colored People (NAACP) filed a class-action

Chief Justice Earl Warren wrote the court’s unanimous opinion. In it, he stated:

“In the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The court’s decision in Brown is especially pertinent to the present debate on affirmative action because it effectively gave life to the practice. In the years after the peak of the civil

The next challenge to Affirmative Action came in 2003 in the form of two cases: Gratz v. Bollinger and Grutter v. Bollinger. In the first case, Jennifer Gratz and Patrick Hamacher both sued the University of Michigan over a points-based system it used in its admissions process. The points-based system awarded students of marginalized groups a substantial amount of points in their favor. While the court recognized that race could be used in admissions, it decided that the university’s point-based system was unconstitutional, because it eliminated the essential individualized aspects of college admissions. The court’s ruling was different in Grutter v. Bollinger when Barbara Grutter filed a lawsuit against the University of Michigan’s Law School for denying her admission. Grutter claimed that she had been discriminated against due to her race and that consequently, the school had violated the equal protection clause of the 14th

Amendment. The Supreme Court, however, ruled in favor of the school because while it used race as a factor in its admissions, it was not weighted heavily. Grutter v. Bollinger set the current precedent for affirmative action policies in admission processes. This very precedent is now under attack.

This leads us to the court’s upcoming decision in two cases: Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. The court will most likely base its decision on the equal protection clause of the 14th Amendment and possibly Title VI of the Civil Rights Act of 1964. They could both be used to rule in favor or against affirmative action.

In an effort to defend affirmative action practices the remaining liberal justices on the bench could make use of a long-time conservative strategy of originalism. This practice involves thinking about what the law may have meant to those who originally passed it. Liberals would argue that affirmative action is quite consistent with the 14th Amendment since it was passed at a time when many race-conscious laws were being enacted in order to benefit newly freed African Americans. In other words, it was passed in order to help minorities just as affirmative action aims to do.

Nevertheless, Students for Fair Admissions would argue that students of underrepresented races being given special attention in admissions is equivalent to the discrimination faced by black students during the era of segregation, therefore, making affirmative action unconstitutional. The conservative majority on the bench may be sym- pathetic to such a plea. The conservative court may defend its anti-affirmative action stance by citing the 14th Amendment’s equal protection clause, claiming that such admission policies discriminate against white students. However, claiming such would, according to Professor Kermit Roosevelt III at the Penn Carey School of Law, imply that “for the Court’s current understanding of equal protection to make sense, we must conclude that the Clause embodies animus against racial minorities.” Therefore, this may not be the most secure path for the conservative on the bench to take.

On the other hand, the conservatives on the court could also defend their stance by looking back at the Civil Rights Act of 1964. While the law has been used by courts in the past in order to defend affirmative action, the actual wording of the law forbids discrimination “on the..basis of race.” If the conservatives on the bench decide to use the Civil Rights Act of 1964 to back their position, then diversity policies outside of academia could also be put into ques- tion. Whichever way the Roberts court decides will not only have a profound effect on academic admissions but in professional spheres as well.

A potential implication of the end of affirmative action could be the end of diversity programs in the workplace. A study conducted by the Gender Action Portal, which investigated the effects of affirmative action rollback in a couple of states found that “minorities working in state or local government decreased relative to the control group of states that kept affirmative action in place: Hispanic men’s participation decreased by 7%, Black women’s decreased by 4%, and Asian women’s decreased by 37%.” The study is a prime example of how the court’s coming decisions in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina could completely alter the physical makeup of schools and workplaces everywhere, perhaps turning them into something entirely unrecognizable.