Author: Jing Feng 9/15/2022

Affirmative action refers to the U.S. government and private sector’s endeavor to provide and improve employment and/or educational opportunities for minority groups and women. This drive was initiated by the administration of President Lyndon Johnson instituting affirmative action policies under the Civil Rights Act of 1964 and Executive Order 11246 in 1965. The Civil Rights Act of 1964 prohibited discrimination on the basis of race, color, religion, sex or national origin and forbade discrimination on the basis of sex, as well as, race in hiring, promoting, and firing. On the other hand, Executive Order 11246 established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors and required contractors to take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.  Programs and policies were monitored by the Office of Federal Contract Compliance and the Equal Employment Opportunity Commission. The initial purpose of this institutionalization was to improve opportunities for African Americans which was later on expanded to cover women, Native Americans, Hispanics, and other members of minority groups.

The first major challenge that the affirmative action has encountered was in 1978 in the case of Regents of the University of California vs. Bakke where the plaintiff Bakke alleged that he suffered unfair “reverse discrimination” on the basis of race, which he argued was contrary to the Civil Rights Act of 1964 and the equal protection clause of the U.S. Constitution’s Fourteenth Amendment. The Supreme Court then ruled in favor of Bakke and held that, while affirmative action is constitutional, the use of strict racial quotas is unconstitutional and may not be used to reserve places for minority applicants if white applicants are denied a chance to compete for those places. Then, a decade later, the Supreme Court started imposing significant restrictions on race-based affirmative action as shown in its several decisions in 1989 giving greater weight to claims of reverse discrimination and outlawing the use of minority set-asides. Later on in 1995, the Supreme Court held that federal affirmative action programs are unconstitutional unless a “compelling governmental interest” is fulfilled in the case of Adarand Constructors vs. Pena. In this case, it was held that race is not a sufficient condition for a presumption of disadvantage and favored treatment based on all race-based classifications must be judged under the strict scrutiny standard hence the necessity of a compelling government interest which must be narrowly tailored to further that interest.

The affirmative action’s most significant opposition then turned out to be the passage of California Civil Rights Initiative in 1996 where all government agencies and institutions are prohibited from giving preferential treatment to individuals on the basis of their race or sex. The Supreme Court then supported this initiative and upheld its constitutionality in November 1997 and refused to hear a challenge to its enforcement. A year later, similar legislations were proposed in other states and one of them was passed in Washington. Moreover, the Supreme Court struck down the affirmative action of the University of Texas ruling that there was no compelling state interest to warrant using race as a factor in admission decisions as held in Hopwood vs. University of Texas Law School.

Conversely, in 2003, the Supreme Court reaffirmed the constitutionality of affirmative action in a case involving admissions to the University of Michigan and its law school though striking down the university’s undergraduate admissions policy that awarded points to students on the basis of race in the case of Grutter vs. Bollinger. Three years later, this ruling was quashed in Michigan under a state constitutional amendment banning race-based and other discrimination or preferential treatment “in public employment, public education, or public contracting.” However, later on in 2016, the Supreme Court upheld the undergraduate admissions policy of the University of Texas at Austin, which incorporated a limited program of affirmative action with the aim of increasing racial and ethnic diversity among its students in the case of Fisher vs. University of Texas at Austin. In this case, it was held that the university’s admissions policy did satisfy strict scrutiny and thus did not violate the plaintiff’s constitutional right to equal protection of the laws.

Presently, the Supreme Court is scheduled to hear cases on affirmative action programs in the admission policies at Harvard University and the University of North Carolina at Chapel Hill on October 31, 2022. Lower courts found that both schools complied with Supreme Court precedents holding race as one factor the universities can consider in a wide-ranging evaluation of applicants. Legal experts and historians also maintain that the stakes are high for affirmative action being an idea instituted to help redress a legacy of inequality. For decades, colleges and universities have relied on the Supreme Court precedents maintaining that it is acceptable to take race into account as one factor among many in a holistic review of an application with the reservation that colleges must consider whether race-neutral admission practices can achieve their diversity goals and prohibition on the use of racial quotas to fill seats in a class. They anchor this advocacy on the idea that racial diversity on campus serves a compelling educational interest since students learn through encounters with peers who may look different from them. For example, the University of Maryland lists 26 review factors on its website. Race and ethnicity are two among them, but so are high school achievements, grades in academic subjects, work experience, SAT or ACT scores, community involvement and many other indicators. The university claimed that the factors are “flexibly applied” in an “individualized, rigorous and holistic review of each application, assessing academic merit, achievements and potential in the context of the opportunities and challenges the student faced.” Separately, some states, including California, Michigan and Florida, have banned the consideration of race in admissions to public universities. These measures enjoy substantial political support. In fact, in 2020, California voters decisively rejected a proposal to repeal the state’s affirmative action ban.

The slim Supreme Court majorities that previously upheld the constitutionality of affirmative action are already gone and replaced by a much more conservative bloc. The court, considering its six-member conservative majority pursuant to appointments by President Donald Trump, has now accepted pivotal cases involving the most controversial issues on abortion, gun rights, and race that could transform jurisprudence significantly. Meanwhile, challengers contend that the court should overturn those precedents in favor of affirmative action and rule that considerations of race violate federal law and the Constitution. The Students for Fair Admissions, the group that spearheaded the affirmative action challenges headed by its president Edward Blum, claimed that polls show that Americans strongly disapprove of race-conscious admissions. Blum said in a statement that “in a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others” and “our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.”

In the present lawsuit against Harvard, an especially explosive allegation that the university allowed racism against Asian Americans to skew its review of their applications is one of the highlights. Blum’s group cited data that allegedly showed a tendency for Harvard to give strong ratings to Asian American applicants for academic performance but penalize them in ratings of personal qualities such as leadership and compassion. The suit also unearthed an internal Harvard review that suggested Asian Americans would be admitted in greater numbers if academic performance were the only criterion for admission. However, the university claimed that the review was incomplete and preliminary and it also denied discriminating against Asian Americans or penalizing them in any way. The lower court then rejected these claims and ruled in favor of Harvard in October 2019 where Judge Burroughs called the Harvard process “imperfect” but also “a very fine admissions program that passes constitutional muster.” She also found no persuasive evidence of “racial animus or conscious prejudice” against Asian Americans. Meanwhile, federal data show that in the fall of 2020, 57% of undergraduates at UNC-Chapel Hill were White. 8% identified as Black or African American, 12% as Asian, and 9% as Hispanic or Latino. 4% were international residents. At Harvard, federal data show 38% of undergraduates identified as White, 9% as Black or African American, 18% as Asian and 12% as Hispanic or Latino. Another 12% were international students. For Harvard, admission is ultracompetitive. Last year, the university offered seats to 1,968 applicants out of 57,435 applicants. The university said 13% of those admitted identified as Latino, 18% as African American or Black and 27% as Asian American.

Considering such factors as the line of ruling in favor of affirmative action over the decades and the composition of the current Supreme Court, there is no complete certainty as to the Supreme Court’s decision on the matter and for how long. Nevertheless, what is certain is the impact of affirmative action to the country. Affirmative action has undoubtedly increased the percentage of admissions and completions by members of minority groups in the U.S. But a question has to be asked on whether this impact is significant enough to keep affirmative action’s head above the water let alone the emergence of evidence showing racial biases regarding affirmative action against Asian-Americans due to an alleged soft quota to keep Asian American enrollment artificially low. These issues coupled with the current composition of the Supreme Court makes it almost impossible for affirmative action to prevail as it did in the previous decades.