Supreme Court decision on the use of affirmative action in higher education

As the Supreme Court hears arguments on Monday on racial-conscious admissions procedures at two esteemed colleges, the future of affirmative action in higher education is at stake.

The University of North Carolina (UNC) and Harvard University will defend their use of race as one of many admissions factors in order to reap the educational advantages of a diverse student population.

Students for Fair Admissions (SFFA), its conservative-backed opponents, claim that the schools’ strategy breaches constitutional rights and federal law and that the court should order admissions offices to stop taking applicants’ race into account at all.

If the Supreme Court takes such extreme action, there would be serious consequences for higher education, according to Ishan Bhabha, a partner at the law firm Jenner & Block who submitted an amicus brief on behalf of Ivy League and other prestigious colleges.

“One of the most important priorities of institutions of higher education — which is to advance knowledge, to ask challenging questions, to explore uncharted territory and have one idea clash against another to try and figure out which one is correct or which one is defensible — is significantly hampered if you don’t have a series of divergent viewpoints,” said Bhabha, who also co-leads his firm’s initiative on diversity, equity, and inclusion (DEI).

Affirmative action precedent, according to many legal experts, is now in jeopardy because of the last Supreme Court term in which conservative justices overturned important decisions like Roe v. Wade.

Steve Schwinn, a law professor at the University of Illinois Chicago, said that the court has a strong six-justice majority that views racial labeling or tagging, for any reason at all, as a constitutional evil.

The challengers are requesting that the 6-3 conservative majority court overturn Grutter v. Bollinger, a landmark decision from 2003 that allowed institutions to diversify their student bodies by utilizing race as one factor in a comprehensive evaluation of individual applications.

As the first female African American judge in the US and one of the court’s more liberal members, Justice Ketanji Brown Jackson is disqualified from hearing the Harvard case due to her most recent membership on Harvard’s board of overseers.

One of the claims made by SFFA in its lawsuit against the schools is that they did not seek diversity objectives via racial-neutral alternatives as required by Supreme Court precedent. The schools, on the other hand, have argued that there aren’t any viable alternatives.

SFFA lost in the lower courts as judges rejected its claims based on the Grutter decision’s 5–4 outcome, which prompted an appeal to the Supreme Court.

SFFA has requested the courts to conclude that Grutter disobeys the legal provision of equal protection under the law set out in the constitution and statutes in court documents. They claim that since race is taken into account while making admissions choices, college admissions personnel have resorted to “crude stereotyping.”

SFFA urged the justices to overturn decades of affirmative action precedent, writing that applicants who check the box for African American at Harvard and UNC, for instance, receive a preference because of their race regardless of whether they were raised in poverty and attended failing schools, had parents who made millions of dollars in business, spent their formative years in Europe, are the direct descendants of slaves, or are second-generation immigrants from Africa.

In its lawsuit against Harvard, the SFFA takes the claim of discrimination against Asian Americans one step further. The organization claimed that regardless of individual circumstances, Asian Americans were less likely to be accepted than candidates of other races as a result of Harvard’s subjective “personal ratings” scores, which tended to reflect cultural prejudices.

Asian American Harvard students who talked to The Hill strongly objected to the way SFFA had described their university’s admissions process. Their opinions are mirrored in an amicus brief submitted by the NAACP Legal Defense Fund, which was signed by hundreds of diverse Harvard alumni and current students.

Angie Shin, a Korean American who attended Harvard after graduating from a public high school in underfunded Los Angeles County, is one of them. According to her, the school’s student body is primarily made up of low-income immigrants from Black, Latino, and Asian backgrounds, and only about half of them graduated on time and went on to earn college degrees.

Shin said that in this setting, it was her responsibility to “become literate” about the options for further education.

For instance, she said, “I had to spend a lot of time on the internet trying to figure out what scholarships were, how they operated, and why they were accepting applications so early.

The case’s potential implications go beyond academics, as seen by the more than 100 friend-of-court papers submitted.

Bhabha of the firm Jenner & Block believes that if the court rejects Grutter, it might be the start of a concerted campaign to restrict the consideration of race in other spheres of American society.

If Grutter is reversed, it will ignite a movement to systematically eliminate DEI efforts from all facets of society, according to Bhabha.