In the coming days, the Supreme Court is expected to strike down affirmative action in higher education in a pair of cases Students for Fair Admissions — an anti-affirmative action group — filed against Harvard and the University of North Carolina.
During oral arguments last October, the court’s conservative majority appeared ready to eliminate race-conscious admissions. Legal experts widely expect the court to abandon the nearly 50-year precedent.
Depending on how the court rules, the decision could upend admissions processes across the country.
Here’s what you need to know ahead of the Supreme Court’s ruling.
Race-conscious admissions policies allow institutions of higher education to use race as one factor to create a diverse student body.
Harvard College’s admissions process uses “holistic review” to evaluate applicants — factors like academic achievement, athletics, legacy status, and race are all taken into account. In the past three years, the College has admitted less than 4 percent of applicants.
According to the College’s Office of Admissions and Financial Aid, “academic accomplishment in high school is important, but the Admissions Committee also considers many other criteria, such as community involvement, leadership and distinction in extracurricular activities, and personal qualities and character.”
The Supreme Court has taken up several major cases about affirmative action: University of California v. Bakke in 1978, Gratz v. Bollinger and Grutter v. Bollinger in 2003, and Fisher v. University of Texas in 2013 and 2016.
Across the cases, the Supreme Court has ruled that racial quotas in admissions are unconstitutional, but the use of race as one factor in admissions is permissible since schools have a “compelling interest” in maintaining a diverse student body for educational benefits. Further, any consideration of race must be “narrowly tailored” to individuals, and universities may only turn to “racial classifications” if “workable race-neutral alternatives do not suffice.”
Harvard has been featured in the affirmative action debate for decades. In a concurring opinion in the 1978 Bakke case, Justice Lewis F. Powell Jr. pointed to Harvard’s admissions process as an “illuminating example” and a model for universities across the country.
Students for Fair Admissions was founded by Edward J. Blum, a conservative activist who has been pushing for an end to race-conscious admissions through litigation for nearly three decades. Blum is also president of SFFA.
Blum is no stranger to the Supreme Court. Through the Project on Fair Representation, a nonprofit that supports litigation challenging racial and ethnic preferences that he founded nearly a decade before SFFA, Blum led efforts to finance the Fisher cases.
While the Supreme Court ultimately upheld affirmative action in both cases, Blum and his supporters came one vote short of overturning the precedent in 2016.
Blum also helped sponsor the litigation behind the landmark 2013 Supreme Court case Shelby County v. Holder, which gutted a key provision of the Voting Rights Act of 1965 that required states with histories of racial discrimination to attain federal approval before changing their election laws.
Blum established SFFA in 2014 as an offshoot of the Project on Fair Representation.
SFFA alleges that Harvard’s race-conscious admissions policies discriminate against Asian American applicants and that the University’s admissions process violates Title VI of the Civil Rights Act of 1964.
The group argues that Harvard consistently rates Asian American students lower on factors like “likability,” “courage,” and “kindness.” Court filings also showed that the University conducted an internal review of its admissions policies in 2013, revealing a bias against Asian American applicants on the “personality” metric, according to the New York Times.
Harvard categorically denies all allegations of racial discrimination.
SFFA first sued Harvard in November 2014. In 2019, Massachusetts District Court Judge Allison D. Burroughs ruled in Harvard’s favor, finding that the College’s admissions policy did not discriminate against Asian American applicants.
“Harvard’s admissions program is narrowly tailored to achieve a diverse class and the benefits that flow therefrom,” Burroughs wrote.
SFFA immediately appealed the decision to the First Circuit Court of Appeals, which also upheld Harvard’s race-conscious admissions policy in 2020.
In 2021, SFFA petitioned the Supreme Court to review the case. On Jan. 24, 2022, the court accepted the petition and consolidated the Harvard and UNC cases. The Supreme Court separated the cases on July 22, 2022, however, to allow newly seated Associate Justice Ketanji Brown Jackson ’92 to weigh in on the UNC case. Jackson had recused herself from the Harvard case due to her previous role on the Board of Overseers, the University’s second-highest governing body.
The court heard oral arguments in both cases on Oct. 31, 2022.
While many legal experts believe that the Supreme Court will declare affirmative action unconstitutional this month, few are sure of what effects the decision may have on the makeup of universities’ student bodies.
Harvard and SFFA both hired economists to simulate how the racial composition of the Harvard College Class of 2019 would have changed if Harvard did not consider race in its application process.
Without using race as a factor in admissions, the percentage of Black and Hispanic students admitted would have dropped, while the number of white and Asian American students admitted would have risen, according to both the Harvard and SFFA analyses.
Some experts also point to the University of California system as an indication of a post-affirmative action world. California banned race-conscious admissions in 1996 through Proposition 209.
In 1995, one year before the passage of Proposition 209, 5.7 percent of students enrolled at University of California, Berkeley were African American, but from 2005 to 2020, the enrollment percentage of African American students at Berkeley fluctuated between 3.3 and 3.7 percent.
Experts are also unsure of how exactly schools across the nation will adapt to a Supreme Court decision that overturns affirmative action precedent.
Some educators and scholars have turned to race-neutral alternatives including “class-rank” plans, which rely on students’ rankings within public school systems. Other options prioritize socioeconomic diversity by considering family income, parents’ level of education, and parents’ occupations.
The scope of the Court’s ruling also matters — a complete ban on the consideration of race could impact affirmative action programs in the workforce in addition to higher education admissions. Legacy and donor preferences may also be on the chopping block.