Fair or unfair? Higher ed braces for potential reversal on affirmative action

Harvard and North Carolina cases head to a different-looking Supreme Court, which could reverse the recent history of equity.
By: | August 3, 2022
Bill Chizek

As early as this fall but more likely in January 2023, the U.S. Supreme Court will be hearing arguments on affirmative action that could shake the restructured, inclusive foundations of every institution of higher education.

Justices reviewing two cases—Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina—will determine whether race and ethnicity can still be considered factors in the admissions of undergraduates at the nation’s colleges and universities. Over the past 50 years, the policy that both protects and enhances opportunities for students of color has withstood several challenges.

But these two hearings, along with the now conservative lean of the High Court, could level them if they are put to a vote. No official start dates have been announced, though the Court has pushed back discussions in the North Carolina case to give newest Justice Ketanji Brown Jackson a chance to hear it. She will not take part in the other one because of her ties to Harvard.

The Court’s announcement that it is willing to entertain both cases individually—with one hour allotted for arguments in each—has led to a barrage of amici curiae briefs in recent days being filed by universities in the crosshairs of the potential decision, as well as myriad higher ed advocacy groups and education organizations. Even tech giants like Google and Apple and other businesses have weighed in, as have individual states with their own brief, though all of them are in Democratic strongholds.

Georgetown University is one of more than 50 Catholic and Jesuit institutions that partnered on a brief, asking that justices not strike down affirmative action because it would affect its “holistic” admissions process, which includes the consideration of “geographic, cultural and religious backgrounds, socioeconomic status and racial and ethnic identities.”

President John J. DeGioia said “Georgetown, the oldest Catholic and Jesuit university in the nation, was founded on the principle that engagement between people of different faiths, cultures and beliefs promotes intellectual development, an understanding of service and solidarity, and a commitment to the common good. Our Jesuit tradition of education recognizes the value of diversity as necessary to education and in our work to shape future leaders who will make invaluable contributions to our national and global communities.”

Historic decision coming?

If it is overturned, it is unlikely that any action would take place immediately, though it would send institutions scrambling to figure out how to undo more than 40 years of progress that includes the robust development of diversity, equity and inclusion initiatives. In an article posted by the New England Board of Higher Education, Bowditch & Dewey higher education attorney Chelsie Vokes wrote that the repercussions could be widespread, potentially impacting enrollments and funding. “Depending on the scope and content of the Supreme Court’s ruling, the decision could affect preferences for first-generation students and reverberate well beyond the realm of education, even jeopardizing grant programs for minority-owned businesses,” Vokes wrote.

She warned that colleges and universities must start preparing now for the inevitable ruling which she said could come as early as the spring, though it is unlikely that colleges would be asked to pivot before the next academic year. Despite the groundswell of support from industry and education, justices could decide to overturn it, the way they did with Roe v Wade.


More from UB: North Carolina did not discriminate in admissions, judge rules


Perhaps the strongest arguments for the Court to continue the pattern of allowing race to be a factor in admissions come from North Carolina and Harvard, which cite precedent as the overriding reason that affirmative action should stand; namely, favorable decisions in Regents of the University of California v. BakkeGrutter v. Bollinger, and Fisher v. University of Texas. Just six years ago, Texas secured a razor-thin 4-3 majority from the court. Two other lower courts have upheld the original Harvard case.

“Harvard has repeatedly studied and continues to evaluate the importance of student-body diversity to its educational objectives and whether a race-conscious admissions process remains necessary to achieve them, but as the district court observed, ‘we are not there yet.’“ Harvard’s brief states. “No alternative is presently workable. Until that changes, Harvard must be allowed to consider race as one of many characteristics in admissions to achieve the compelling benefits of student-body diversity.”

Fighting to keep affirmative action intact

However, the nonprofit Virginia-based SFFA led by “students, parents and others” and its founder Edward Blum believe race should not be a determinant in decisions made by competitive institutions. Its lawsuits against the two universities date back to 2014, and it filed another recently against Yale University that said it discriminated against white and Asian students by making race a factor. It may have an edge in its two cases given the changes to the Court under former President Donald Trump that include the appointments of Brett Kavanaugh and Amy Coney Barrett. The Yale case is not being heard, though the university sent out its own brief and reaction:

“Yale stands firm in supporting universities’ established right to compose incoming classes that are diverse along many dimensions and in its commitment to enrolling students from all walks of life,” president Peter Salovey said in a statement.

Harvard has said Blum’s motives are political. Other groups, including the Admissions Community Cultivating Equity & Peace Today (ACCEPT), lashed out at his organization on Tuesday.

“SFFA’s positions are riddled with gross racial stereotypes, patently unworkable ‘solutions,’ and mischaracterizations of the admissions process,” Marie Bigham, founder and executive director of ACCEPT, said. “We call upon the Supreme Court to reject this misinformation, which has already been refused by the courts. As a multiracial Asian admissions professional, I cannot stand by when the hard-won battles to increase the representation of students of color—including [Asian American and Pacific Islander] students—in colleges are sought to be diminished in an effort to benefit those already privileged in a multitude of other ways.”

The American Association of Colleges & Universities (AACU) signed on with 39 other organizations in filing their own brief, stating that a change “would chill student expression and deprive a subset of applicants of the full benefits of holistic review: those for whom racial or ethnic identity plays a role in their life experiences, leadership skills, or potential campus contributions. Students of color would face the unenviable choice of declining to speak of their ethnicity or race or speaking and being ignored. Yet, students discussing socioeconomic status, gender, age, disability, or experiences as veterans, musicians, or first-generation learners, all could speak freely.”

One of the offshoots of the admissions process that has been critical in ensuring students of color and those from underserved communities are given opportunities in higher education has been the elimination of standardized test inclusion. If that too changes at institutions, will that further harm those students in the future?

“Test scores do not measure ‘merit,'” said Bob Schaeffer, public education director at FairTest, the National Center for Fair and Open Testing. “Increasing the emphasis on ACT/SAT scores in the admissions process, as advocated by opponents of holistic policies at Harvard and the University of North Carolina, will reduce student diversity without improving academic quality. The current practices of those two institutions are fair, valid and well justified.”