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The Supreme Court (SCOTUS) heard oral arguments on Monday, October 31, in two cases that could put an end to affirmative action on college campuses. The Court’s conservative majority, enlarged by the recusal of Ketanji Brown Jackson for this case, will have another difficult decision during its new term, which could reverse a precedent that dates back more than 40 years.
In Students for Fair Admissions v. President and Fellows of Harvard College, the lawsuit argues that Harvard University’s admissions policy discriminates against Asian applicants. According to them, Asian applicants are less likely to get in compared to other equally qualified students.
On the other hand, in Students for Fair Admissions v. University of North Carolina, the former argues that the university’s admissions policy violates both the Constitution and Article VI of the Civil Rights Act.
First precedent: Regents of the University of California v. Bakke (1978)
Before we jump right into both, it’s critical to take the time machine and go back to the ruling that started it all. This was the story of Allan Bakke, a white male who tried to get into medical school at the University of California. Despite the fact that his admission score was well above the average for those admitted and that slots were still open when he sent in his application, it was rejected due to the school’s racial quota system.
His lawsuit reached the Court and it ruled that the practice was unconstitutional since it explicitly violated the Fourteenth Amendment (equal protection) and the Civil Rights Act of 1964. However, that was not the end of the matter.
The nation’s highest court also ruled that schools had a “compelling interest” in the educational benefits of having a diverse student body, which would allow them to consider race in admissions as long as it was one of many factors considered.
In short, the Court left the door open to race as one consideration among many in admissions, also opening the door to decades of controversy.
Modern precedents: Gratz v. Bollinger and Grutter v. Bollinger (2003)
These sister suits were brought by white students against the University of Michigan and set the template for college admissions that have been used ever since.
The most relevant was the second case, in which Barbara Grutter sued the University of Michigan Law School for denying her admission because of her ethnicity. The young woman had excellent grades, including a 3.8 undergraduate GPA and an LSAT score of 161, but was rejected in pursuit of racial diversity.
With a 5-4 decision, the Court held that “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause.”
The majority consisted included Justices Anthony Kennedy and Sandra Day O’Connor, who, back then, were considered swing votes in the Court. O’Connor wrote the majority opinion; nevertheless, she openly stated that the constitutionality of affirmative action should have an expiration date.
“That 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” the justice wrote at the time.
Nearly 20 years later, the Supreme Court is again discussing affirmative action
When the Court heard oral arguments in late October, its composition was very different from 2003. There is now a clear conservative majority, consisting of Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch, who contrast with liberals Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor. In the middle of both groups is John Roberts, who has already shown that he is perfectly capable of joining either group depending on the moment.
With Jackson out of the case, recused because of his recent past at Harvard, the gap between the two camps is wider. Conservatives could well take advantage of this scenario to reverse the initial ruling without the compelling need for Roberts’ vote.
Taking up the gauntlet, a group of 83 Republican lawmakers, led by Senator Ted Cruz, filed an amicus curiae with the highest court. “Grutter is a constitutional anomaly. Decisions under the Fourteenth Amendment firmly establish that equal protection of the law includes the right to equal treatment regardless of one’s race,” they wrote.
“Respondents’ admissions policies intentionally divide applicants by race. In doing so, they harm Asian-American students and others, who are unfairly judged by their race rather than by individual merit. Under the Fourteenth Amendment and Title VI, those policies cannot stand,” they added.
Judges’ reaction to oral arguments
Many of the conservatives were quite dismissive of affirmative action policies on college campuses. For example, Kavanaugh indicated that such policies are “potentially dangerous and must have a logical end point.” Thomas claimed to have no idea what the word “diversity” means.
Meanwhile, Alito asserted that ” if you give a ‘plus’ to a person who falls within the category of under-represented minority, but not to somebody else, then you are disadvantaging the other student.”
In defense of affirmative action, Kagan argued that “white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries, do not?”
At the same time, Sotomayor stated that “you’re more likely to be in an underresourced school. You’re more likely to be taught by teachers who are not as qualified as others. You’re more likely to be viewed as having less academic potential.”
As in all other cases, the justices have already privately cast their tentative votes, and it is more than likely that the lead justice in the majority has already begun writing the majority opinion. However, to know it, we will have to wait until June 2023.
Joaquín Núñez es licenciado en comunicación periodística por la Universidad Católica Argentina. Se especializa en el escenario internacional y en la política nacional norteamericana. Confeso hincha de Racing Club de Avellaneda. Contacto: [email protected] // Joaquín Núñez has a degree in journalistic communication from the Universidad Católica Argentina. He specializes in the international scene and national American politics. Confessed fan of Racing Club of Avellaneda. Contact: [email protected]