The implementation of affirmative action policies provided a new way for university campuses across the country to view equality and race in admissions. It also expanded the definition of the U.S. Constitution’s Equal Protection Clause, which some believe was solely aimed at securing equality for former slaves. In fact, there was a big push for colleges to admit more black students during the civil rights era and after the assassination of Dr. Martin Luther King Jr. In a 2019 New York Times article entitled “50 Years of Affirmative Action: What Went Right, and What It Got Wrong,” Anemona Hartocollis wrote that “in 1969, the number of black students recruited and admitted to Ivy League universities and their sister schools rose sharply from the year before, in many cases by more than 100%.”
In spite of the increase in admissions, affirmative action has faced opposition since its inception. In fact, the very same 2019 New York Times article noted that, according to the Harvard Crimson, alumni believed that because of affirmative action, “semiliterate blacks [were] being admitted at the expense of white geniuses.”
In 1978, the Supreme Court of the United States decided Regents of the University of California v. Bakke, which was a monumental case in the development of the educational standards that still exist today. Allan Bakke, a 35-year-old white male, applied to the University of California at Davis (UC Davis) medical school and was denied twice. Bakke claimed that UC Davis unfairly rejected him due to the medical school’s practice of reserving 16 of 100 seats for minority students. More specifically, Bakke argued that this “quota system” infringed on his equal protection rights under the Fourteenth Amendment. Bakke alleged that UC Davis violated Title VI of the Civil Rights Act of 1964, which prohibits institutions that receive federal funds from discriminating on the basis of race. The Court found that institutions could use race as a factor in admissions; however, quota systems were unconstitutional. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). In addition, Justice Lewis Powell, the associate justice who wrote the Bakke ruling, opined that the only credible justification for affirmative action in admissions is the educational benefits of having a diverse student body. Id.
The Court revisited the issue of affirmative action in the 2013 case of Fisher v. University of Texas, in which it held that college affirmative actions must be narrowly tailored toward the accomplishment of a specific goal. Fisher v. Univ. of Tex., 570 U.S. 297 (2013). In alignment with the sole justification stated by Justice Powell in Bakke, the Fisher Court additionally held that colleges must prove that race-based admissions policies are the only way to meet diversity goals. Id.
In the wake of Bakke and Fisher, the Court considered numerous other cases dealing with race-conscious admissions policies, including Gratz v. Bollinger and Grutter v. Bollinger, in which some justices foreshadowed a time when affirmative action would no longer be necessary. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). In her concurrence to the majority opinion in Grutter, Justice Ruth Bader Ginsburg wrote that “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.” Grutter, 539 U.S. at 346 (Ginsburg, J., concurring). Justice Ginsburg went on to recognize that “it was only 25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery.” Id.
One might ask, do the current justices approach race-conscious issues differently than did the justices who decided Bakke? With Students for Fair Admissions v. Harvard currently in federal court, Edward Blum, the initiator of Fisher v. University of Texas, hopes that the new conservative majority on the Court will rule that the use of race in admissions is unconstitutional.
In short, the current complaint alleges that Harvard discriminated against Asian American applicants in regard to admissions. More specifically, the anti-affirmative-action plaintiffs in the case, Students for Fair Admissions (SFFA), accused Harvard of using a quota system to restrict the number of Asian American students it accepts. This case is a little different from past challenges to race-conscious admissions policies because here a racial minority claims to face penalties in favor of whites and other minority groups.
According to Harvard Magazine, SFFA aims to prove that white students received an advantage over better-qualified Asian American applicants through ill-defined personality ratings that invited implicit bias and discrimination. Harvard Magazine also states that during admission evaluations, Asian American applicants on average perform better than white applicants on other measures used by the admissions office, academic and extracurricular, but receive substantially lower personality scores.
In a recent Brookings Institution article by Andre Perry entitled “The College Admissions Scandal Proves That We Need Affirmative Action,” Harvard argues that “it exercises its constitutional and moral right to set diversity goals and considers race in admissions decisions in order to reach them.” Further, Harvard claims that race isn’t the sole determining factor in an applicant’s admission decision and that when race is considered, it is done so flexibly and used as a plus factor. Meanwhile, the plaintiffs say Harvard holds Asian American applicants to a higher standard than other applicants through the use of “personality tests” and that this practice results in racial balancing, which violates Title VI of the Civil Rights Act of 1964. To refute this claim, Harvard denies discriminating against Asian American applicants and defends its holistic admissions policy as considering race as one factor among many used in reviewing applicants.
Forty-one years after the monumental Bakke decision, several questions arise: Do we still “need” affirmative action? In his concurrence in Bakke, Justice Brennan opined that “the government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.” Bakke, 438 U.S. 265 (1978). Are we still as worried about racial inferiority as we were during the civil rights era? Is it still appropriate for the government to try to remedy past racial prejudice? In 2008, we elected the first African American president of the U.S. Was this a sign that we are in a “post-racist society” and no longer need to remedy disadvantages? Justice Brennan went on to opine that “we cannot let color blindness become myopia which masks the reality that many ‘created equal’ have been treated within our lifetimes as inferior both by the law and by their fellow citizens.” Id. Born in 1906, Brennan was part of the generation of people who lived through both world wars and the Great Depression. Is it safe to say that the type of prejudice African Americans faced during Justice Brennan’s lifetime has been remedied during this last century?
There are no clear answers to these questions, and in fact some believe racial minorities still carry the burdens of past oppression, while others agree with the majority in Grutter, which stated that “25 years from now, the use of racial preferences will no longer be necessary to further the interest” in student body diversity in the context of public higher education. Grutter, 539 U.S. 306 (2003). Sixteen years after the Grutter decision, the Court is expected to decide the fate of affirmative action in admissions policies—what the justices will decide is anyone’s best guess.
Daraja Carroll is a law student at American University’s Washington College of Law. She is currently a participant in JIOP, interning with the Superior Court of California in the County of San Francisco.
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