After a 50 Year Fight, the Supreme Court Has Ended Affirmative Action In College Admissions

/ June 30, 2023

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” — Chief Justice John Roberts, in Parents v Seattle (2007), on whether or not race should be a factor in school admissions.

“(The) way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” — Associate Justice Sonia Sotomayor, in a response to Roberts, whether race should be a factor in school admissions.

As expected, the Supreme Court voted to end Affirmative Action in college admissions. The decision is the latest of established policies to be ended by the heavily right wing Supreme Court which has a recent history of overturning decades of established precedents. The ruling ends over fifty years of policies that have allowed universities to take race into account as a factor in admitting students.The consequences could be dire for racial equity in America.

Affirmative Action encompasses racial equity-based policies in education, government, and other organizations that seek to increase admissions and hirings of people of color that have been historically excluded. The phrase first appeared in President John F. Kennedy’s Executive Order 10925, which stipulated that contractors hired by the federal government “take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, or national origin.”

President Lyndon B. Johnson further extended Affirmative Action by allowing federal agencies to give preferences to minority applicants. Aware of possible criticism, Johnson said, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line and then say, ‘You are free to compete with all the others’ and still justly believe that you have been completely fair.”

President Richard M. Nixon, who stated the Black Americans deserved “a dividend” as well as equal opportunities, expanded Affirmative Action to a greater extent than his two predecessors. Nixon viewed the rioting that rocked several inner cities in the Sixties as a result of economic exclusion. He had his Labor Department act accordingly. Undersecretary of Labor, Arthur A. Fletcher, a rising Black Republican star who narrowly lost a statewide election for Lt. Governor in Washington, expanded to several cities Johnson’s Philadelphia Plan that required unions and federal contractors to admit and hire minority workers respectively. When Nixon’s push on Affirmative Action was met with resistance from southern Democrats and conservative Republicans, he backed off. He eased up on equity hiring policies, and had Fletcher transferred to the United Nations. And as he geared up for re-election in 1972, Nixon, as a precursor to the inflammatory rhetoric that would define opposition to Affirmative Action, frequently spoke out against “quotas.”

The biggest resistance to Affirmative Action has come from what would become fifty years of lawsuits brought by white plaintiffs. None was more significant and explosive than Bakke v University of California Regents in 1977. The Bakke Case propelled Affirmative Action into the front pages of passionate political discourse that heightened the debate over racial equity in America and often stirred racial antagonisms.

Citing the 14th Amendment’s equal protection clause, Bakke claimed reverse discrimination by UC Davis which had set aside 16 of 100 admissions for Black, Hispanic, Asian, and Native American applicants. Protests for and against Bakke flared up across the nation. When the case came before the Supreme Court over 400 people lined up to witness oral arguments. It was the most significant racial equity case before the court since Brown V Board of Education struck down segregated schools in 1954. This time the plaintiff was white.

The Supreme Court split on Bakke. Citing the 14th Amendment, it ruled against quotas and admitted Bakke to UC Davis Medical School. Justice Lewis Powell, stating that a diversified student body benefitted the school and the country, sided with the four liberal justices, keeping Affirmative Action alive by allowing schools to take race into account in admissions.

Justice Thurgood Marshall noted the irony in the Court’s sudden embracement of 14th Amendment protections long denied to African Americans. He wrote a blistering dissent: “I do not agree that the petitioner’s admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitutions stands as a barrier.”

Taking race into account for admissions appeared to be settled law in 2003 when the Supreme Court heard a challenge to the University of Michigan’s admission policy in which race was a factor. In the case Grutter v. Bollinger, the high court in a 5-4 ruling upheld the diversity rationale in Affirmative Action. Justice Sandra Day O’Conner provided the swing vote. While she kept Affirmative Action alive, she stated that it might only be necessary for another twenty-five years.

The Supreme Court has moved further to the right since 2003 and has weakened Affirmative Action in several key cases. In 2007 the court struck down voluntary racial plans that had effectively integrated public schools in Seattle and Louisville. Aside, nine states have banned Affirmative Action in admissions, Washington among them.

Now with a super majority of six Republican-appointed justices, the Court has struck down the “diversity” tenant that has sustained Affirmative Action since Bakke. The plaintiffs, Students for Fair Admissions (S.F.F.A), sought to end the diversity rationale they claim is “grievously wrong” and produces “crude stereotyping”. The defendants, Harvard and the University of North Carolina, argued that the court’s history of upholding the tenant that racially diverse student bodies benefit society as a whole should be continued.

Since Justice O’Connor’s since-regretted 2003 claim that Affirmative Action would not be needed in twenty-five years, economic and social disparities between Blacks and whites have grown. During last fall’s deliberations, Justice Sotomayor noted that among the nine states where Affirmative Action was outlawed, admissions for white students to colleges have remained the same or increased while those of people of color have dropped significantly. Enrollment of historically underrepresented groups in medical schools in the states that banned Affirmative Action has seen a devastating decline of one-third.

The costs of racial inequities resonate far beyond schools. Over fifty percent of the counties in America lack a single Black family practice doctor, resulting in African Americans getting less preventative care. (Studies have shown that Black people live longer in counties with more Black physicians.)

The Supreme Court in recent years has moved further to the right throughout this young century, overturning precedents and established law in voting rights, campaign financing, gun ownership, and most recently, abortion rights. Now it has done the same to Affirmative Action, interpreting as colorblind the 14th Amendment that up until 1954 was viewed by the courts as seeing only white.