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The two suits — both brought by Students for Fair Admissions, a group run by a conservative legal activist, Edward Blum — claim that using race as a part of the college selection process violates protections against discrimination found in the Constitution and the Civil Rights Act of 1964. These arguments are similar to the ones used in previous challenges to affirmative action that have been brought to the Supreme Court . The rulings in those cases have significantly limited how heavily race can be weighted in admissions, but each time, the in the belief that colleges have a compelling interest to promote diversity on their campuses.
The current court, though, looks as if it may be primed to eliminate affirmative action for good, legal experts say. Two justices who routinely defended the practice, Anthony Kennedy and Ruth Bader Ginsburgh, were replaced during the Trump administration by two hardline conservatives, Brett Kavanaugh and Amy Coney Barrett. While only five votes are needed, it’s possible that all six of the court’s conservatives could vote to kill affirmative action. President Biden’s nominee to replace Stephen Breyer, the liberal justice who announced last week that he is retiring, should be on the bench in time to hear the upcoming case, but her presence isn’t likely to sway the outcome.
Why there’s debate
Defenders of affirmative action say that ending it would almost immediately and less representative of the country as a whole. As evidence, they point to data from a number of states that have banned racial preferences on their own. In the University of California system, for example, enrollment rates for Latino, Black and Native American students since the state eliminated affirmative action in 1996. Some higher education experts say the end of affirmative action would not only harm people from underrepresented groups, who will miss out on the chance to attend elite colleges, but would deny students at those schools the benefits that come from on-campus diversity.
Conservatives generally see these upcoming Supreme Court cases as an opportunity to end a misguided experiment that unfairly tipped the scales against applicants who don’t fall into certain groups. They argue that, without affirmative action, all applicants would rightly be judged on their academic merit, rather than on their backgrounds. Some also point to evidence that the biggest beneficiaries would be Asian American applicants, who face the toughest admissions standards at some elite schools, even though they are themselves racial minorities.
There are also those who believe that colleges will find new, perhaps even more effective, ways of promoting diversity in the absence of affirmative action. Some experts argue that once schools are freed from the tangled mesh of laws that govern how racial preferences can be applied, they’ll be free to try out simpler ways of ensuring that the students who are most deserving of a leg up can receive it.
The court will take up the affirmative action cases during its next term, which starts in the fall. A final decision may not come until well into 2023. Before that, the justices are expected to issue rulings on major issues including abortion, gun control and environmental protections.
Universities will quickly become more racially homogeneous without affirmative action
“The Supreme Court’s inevitable decision will have immediate and catastrophic consequences. Public and private universities will resegregate. Black and Brown students will no longer be present in substantial numbers at selective predominantly White institutions, although Asian Americans will continue to have a strong representation.” — Paul Butler,
College admissions would be decided on merit, as they should be
“Race should never get in the way between an individual and her dreams. The onus is on universities to treat individuals based on their individual abilities, aspirations, and achievements, not on the basis of their membership in a racial group.” — Wencong Fa,
All students will be worse off if on-campus diversity is reduced
“Conversations about racial bias and civil rights are different when there are students of color in the room. Preparing students for the racially diverse world they will live and work in requires that they learn in racially diverse classrooms.” — Erwin Chemerinsky,
Power to decide which diversity efforts are legal would return to Congress
“The debate about affirmative action often appears to give the Supreme Court a choice between deferring to universities and asserting an ideal of colorblindness. But there is an alternative: deferring to a law that has already been passed. That’s the democratic answer to the conundrum that the court keeps posing for itself.” — Ramesh Ponnuru,
Without affirmative action schools may find better ways to counter discrimination
“Affirmative action has been a veil obscuring the truth about American higher education. It has never been that hard to see through, for those who tried, but removing it could force the nation at large to recognize the disparities in our system, and to search for better mechanisms to make college equitable.” — Adam Harris,
Affirmative action is already so hamstrung, its repeal would make little difference
A focus on economic diversity may be more effective at reducing inequality
“At elite schools, affirmative action mostly serves an increasingly ethnically varied group of wealthy students and their families. As a result, the narrative around diversity in these places has been reduced to pure racial representation, which, while important enough, does not exactly fulfill the social mission that most people think is inherent to any affirmative action program — helping students whose families have suffered under generations of white supremacy.” — Jay Caspian Kang,
Society as a whole will be worse off without affirmative action
“I think it will make the quality of education less robust and less rigorous. I think it will mean we also end up with fewer racially diverse professors and professionals. It’s going to have adverse and broad consequences for our society.” — Tanya Washington, education law expert, to
Aid can be targeted to people who are directly affected by racial discrimination
“For many schools, however, the diversity rationale for racial preferences is likely a smokescreen for the real purpose: compensating minority groups that are victims of long-standing discrimination, particularly African Americans. This justification, which has largely been rejected by the Supreme Court, is much more logically compelling than the diversity theory. … But if universities are to use it, they must at the very least carefully calibrate such remedial racial preferences to ensure that those receiving them really have been harmed by discrimination.” — Ilya Somin,
College admissions is the first target in a much larger attack on diversity in general
“We can expect a strongly worded 6–3 decision insisting on ‘color blindness’ in admissions, full stop. That would surely invite further legal challenges to diversity programs in every other area of American life: hiring, contracting, grant-making, and on and on.” — Nicholas Lemann,
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