Affirmative Action: Contrary to the Constitutional Principles and Policies of the United States?

PC: https://www.nbcnews.com/news/asian-america/students-file-join-harvard-lawsuit-defend-race-conscious-admissions-n696361

By: Riley Henry

The use of “race conscious” policies, better known as affirmative action, in university admissions is once again being challenged in open court. Arguments for Students for Fair Admission v. Presidents and Fellows of Harvard College[1] began on October 15th in the United States District Court for the District of Massachusetts.

The suit, brought by a group of Asian-American applicants who were denied admission to Harvard, alleges Harvard’s current admissions policy holds Asian American students to a higher standard based on their race.[2] Additionally, the plaintiffs claim that Harvard generally considers race to an impermissible degree in violation of the Equal Protection Clause and Title VI of The Civil Rights Act by engaging in a prohibited form of racial balancing, not limiting its consideration of an applicant’s race to “merely a plus factor,” and not using an available, racially neutral alternative that would achieve the same goals of diversity.”[3]

Although Students for Fair Admission’s claims against Harvard look very similar to previous constitutional challenges to affirmative action policies, there is a large possibility that the Supreme Court may ultimately decide to not follow precedent and rule affirmative action policies unconstitutional.

The concept of affirmative action has been around since the late 1860s,[4] but its contemporary meaning was established in 1961 by President John F. Kennedy. In Executive Order 10925,[5] President Kennedy stated that “discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States”; that “it is the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin”; and that “it is the policy of the executive branch of the Government to encourage by positive measures equal opportunity for all qualified persons within the Government”.[6]

In response to Executive Order 10925 and the Civil Rights Act of 1964, many universities began to utilize affirmative action policies in their admission process.[7] These policies were meant to level the playing field for those who have been disproportionately rejected by college admissions by giving special consideration to women, racial minorities, and members of other historically excluded groups.

Since their implementation, affirmative action policies in university admissions have been challenged many times. While the Supreme Court has upheld many affirmative action policies as constitutional, it has also greatly limited their use to very narrowly defined ways.[8]

The Supreme Court first addressed the constitutionality of affirmative action policies in 1977 when they decided the landmark case, Regents of the University of California v. Bakke.[9] In Bakke, a white medical school applicant challenged his rejection from the University of California Davis, arguing that he was not admitted because the school had a racial quota that admitted nonwhite applicants with lower scores.[10] The Court found the University’s decision to reserve a percentage of seats for minorities was unconstitutional.[11] However, the Court also found that race could be considered in admissions if it was factored in with other characteristics in a competitive process.[12]

The Supreme Court again affirmed the constitutionality of affirmative action policies in Grutter v. Bollinger.[13] In Grutter, the University of Michigan Law School Admissions Office used race as one of a number of factors in their admissions process.[14] The Court held that this policy was narrowly tailored enough to satisfy strict scrutiny because the “program is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application.”[15] The Law School engages in a highly individualized, holistic review of each applicant’s file, in which they gave consideration to all the possible ways in which an applicant might contribute to a diverse educational environment.[16]

Finally, the Court most recently affirmed the constitutionality in Fisher v. Texas.[17] In Fisher, a white female who was denied admission to the University of Texas sued the University arguing that the use of race as one of the many factors considered in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment.[18]  The Court found that the University’s use of race constitutes a “factor of a factor of a factor,” which, as one factor in the University’s holistic review process, is narrow enough to meet strict scrutiny.[19] The Court also held that there is a compelling interest in “obtaining the educational benefits that flow from student body diversity.”[20]

Regents of the University of California, Grutter, and Fisher all highlight the Supreme Court’s previous refusal to declare affirmative action policies in university admissions unconstitutional. This may change if Students for Fair Admission is appealed up to the Supreme Court. Although the lawyers in Students for Fair Admission claim the case is not challenging the validity of affirmative action in college admissions,[21] many observers believe that the Court’s decision will have a broad impact on how universities factor race into their future admission policies.[22] This belief of wide spread impact has been strengthened by the statement of interest in Students for Fair Admission filed by the Justice Department in late August[23] and the current administration’s move to rescind seven Obama era guidance documents from the Education Department’s Office for Civil Rights and the Department of Justice.[24]

Until Students for Fair Admission v. Presidents and Fellows of Harvard College is decided by the Supreme Court, all supporters on both sides of the affirmative action argument can do is wait to see if the makes it to the Supreme Court.

[1] Students for Fair Admissions v. President & Fellows of Harv. C., No. 14-cv-14176-ADB (D. Mass. Filed Nov. 17, 2014).

[2] Anemona Hartocollis, Does Harvard Admissions Discriminate? The Lawsuit on Affirmative Action, Explained, The N.Y. Times (Oct. 15, 2018) https://www.nytimes.com/2018/10/15/us/harvard-affirmative-action-asian-americans.html.

[3] Students for Fair Admissions v. President & Fellows of Harv. C., 2018 U.S. Dist. LEXIS 167901, *10.

[4] Aderson Bellegard François, Acts of Meaning: Telling and Retelling the Narrative of Race-Conscious Affirmative Action, 57 How. Law J. 467 (2014

[5] Exec. Order No. 10925, 26 Fed. Reg. 1975 (Mar. 8, 1961).

[6] Exec. Order No. 10925, 26 Fed. Reg. 1975, 1977 (Mar. 8, 1961).

[7] Drew DeSilver, Supreme Court Says States Can Ban Affirmative Action; 8 Already Have, Pew Research Center (Apr. 22, 2014), http://www.pewresearch.org/fact-tank/2014/04/22/supreme-court-says-states-can-ban-affirmative-action-8-already-have/.

[8] Adam Harris, The Era of Affirmative Action May Not Last Much Longer, The Atlantic (Jul. 3, 2018), https://www.theatlantic.com/education/archive/2018/07/the-era-of-affirmative-action-may-not-last-much-longer/564416/.

[9] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

[10] Id. at 276-78.

[11]Id.

[12] Id. at 265.

[13] Grutter v. Bollinger, 539 U.S. 306 (2003).

[14] Id. at 338.

[15] Id.

[16] Id.

[17] Fisher v. Texas, 136 S. Ct. 2198 (2016).

[18] Id.

[19] Id. at 2207.

[20] Id. at 2203.

[21] Marina N. Bolotnikova, Harvard and Students for Fair Admissions Make Opening Arguments, Harvard Magazine (Oct. 16, 2018), https://harvardmagazine.com/2018/10/sffa-admissions-trial.

[22] Anemona Hartocollis, Does Harvard Admissions Discriminate? The Lawsuit on Affirmative Action, Explained, The N.Y. Times (Oct. 15, 2018) https://www.nytimes.com/2018/10/15/us/harvard-affirmative-action-asian-americans.html.

[23] Katie Benner, Justice Dept. Backs Suit Accusing Harvard of Discriminating Against Asian‐American Applicants, The N.Y. Times (Aug. 30, 2018), https://www.nytimes.com/2018/08/30/us/politics/asian-students-affirmative-action-harvard.html.

[24] Adam Harris, The Era of Affirmative Action May Not Last Much Longer, The Atlantic (Jul. 3, 2018), https://www.theatlantic.com/education/archive/2018/07/the-era-of-affirmative-action-may-not-last-much-longer/564416/.

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