The Recent Threat to Affirmative Action

The use of the Equal Protection Clause of the Fourteenth Amendment in college admissions has been the subject of criticism, mainly for using race as a positive factor in the admissions process. Despite the clear necessity for diversity throughout this country’s education system, Students for Fair Admissions, Inc. (SFFA), filed suit against the University of North Carolina as well as Harvard University over their holistic approach when evaluating applications. The university’s approach includes sometimes considering race to benefit Black, Hispanic, and Indigenous applicants who have historically faced inequality in college admissions. The SFFA believed this was a violation of the Equal Protection Clause for treating applicants differently based on race. Because of the Supreme Court’s current ideological makeup, challenges to civil rights have been threatened. For example, the Supreme Court has decided cases that amend interbranch relations and rights given to citizens through substantive due process. These rulings overruled established precedent, and are a direct result of the Supreme Court shifting ideologically to the right with appointments made by President Donald Trump from 2016 to 2020. 


This case would not be the first time the Supreme Court voiced its opinion on the topic of affirmative action. In Regents of the University of California v. Bakke (1978), the Supreme Court decided that explicit quotas given to “qualified minorities” were unconstitutional. Justice Powell in the plurality of Bakke still held that diversity was a compelling state interest; admission boards could consider race, but it could not be the sole reason for admission nor hurt any applicant’s chances. Because of this, many colleges began to adopt a holistic approach. 


The next significant Supreme Court case about affirmative action was Grutter v. Bollinger (2003) where the constitutionality of Bakke’s precedent was put to the test. In Grutter, the Supreme Court decided that Michigan Law School’s practice of affirmative action was not a violation of the Fourteenth Amendment’s Equal Protection Clause nor a violation of Title VI of the Civil Rights Act. So why is the Supreme Court hearing a seemingly settled case? Justice Sandra Day O’Connor wrote in the majority opinion of Grutter, “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”[1] With this, Justice O’Connor put a timer on the constitutionality of affirmative action–a timer that has expired. The questions answered in this case are identical to the ones raised in the case against UNC and Harvard. 


The defining aspect of the Grutter decision–essentially what made modern affirmative action practices constitutional–was the introduction of the strict scrutiny standard being applied to holistic applicant evaluations where race is considered. Strict scrutiny is a standard that courts use when deciding the constitutionality of laws that either infringe upon a constitutional right or discriminate based on race. To pass strict scrutiny, the law must serve a compelling state interest that is narrowly tailored to achieve its stated interest.[2] Justice O’Connor believed, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”[3] This legitimized Michigan Law School’s use of affirmative action in Grutter as a compelling state interest. The second prong to the strict scrutiny test is if this interest was narrowly tailored in its methods of achieving diversity. In other words, could Michigan Law School achieve student diversity without classifying based on race? The Supreme Court’s answer to this was also no because there was no quota system present in their admissions process. Instead, Michigan Law considered race as a component of an applicant’s evaluation that could only help applicants of certain races and not hurt other candidates. 


Gathering data on the effectiveness of affirmative action has proven to be difficult. The reasoning for an applicant’s admission to a college is not readily available to the public and is hard to determine without internal testimony. Within the oral arguments given to the Supreme Court in this case on October 31st, 2022, Professor Caroline Hoxby shared the results of a statistical and regression analysis of the data from the University of North Carolina’s application pool. From that analysis, Professor Hoxby concluded that race and ethnicity accounted for 1.2% of total admission decisions of in-state applicants and 5.2% of out-of-state applicants. In contrast, the poverty rate in North Carolina based on race/ethnicity is 9.6% White, 21.2% Black, 23.4% Hispanic, and 24.2% Indigenous/Native American.[4] The three largest demographics of people suffering in poverty are the exact groups that receive benefits in the admissions process for the University of North Carolina through affirmative action. 

Arguments have been made to pursue race-neutral alternatives that would more narrowly achieve the University of North Carolina’s diversity goals without classifying by race. However, Professor Hoxby tried to apply the other remedies and testified to the Middle District Court of North Carolina that these methods would not efficiently achieve their goals. Multiple approaches were explored during the District Court Trial, but the new techniques either lowered medians from the previous system or did not promote diversity as efficiently as the previous system. This was a part of the argument that led the District Court to rule against SFFA. Another factor may have been standing by the precedents set by Bakke and Grutter. Regardless, this case was accepted via a writ of certiorari and the Supreme Court will issue its opinion next summer. Affirmative action serves to remedy historical injustice and ensure equal opportunity.