Affirmative Action on Trial: The Supreme Court’s Newest Challenge

The Cases Before the Court

Students for Fair Admissions, a conservative organisation, argues that Harvard and UNC unlawfully discriminate against White and Asian applicants by giving preference to Black, Hispanic and Native American candidates. The group seeks to end the use of race as a factor in university admissions.

The Court is not expected to deliver a final judgment until June or July 2023. Commentators have noted that several Justices, including Clarence Thomas, have previously criticised affirmative action. However, the outcome will only be known once the Court issues its certified decision.

Background: How Affirmative Action Developed

Since the 1960s, legal precedent has permitted universities to consider race as one factor in admissions. Race cannot be the sole determinant, but it can be used alongside academic performance and other indicators of potential.

The policy has survived multiple legal challenges. In Grutter v. Bollinger (2003), the Supreme Court upheld the University of Michigan Law School’s use of race under the Fourteenth Amendment’s Equal Protection Clause. In 2016, the Court again upheld race‑conscious admissions in Fisher v. University of Texas at Austin, although by a narrow margin.

However, the current Supreme Court has shown a willingness to revisit and overturn precedent. This makes the present cases particularly significant.

The Debate Surrounding Affirmative Action

Both sides claim to pursue racial justice, but they differ sharply on how to achieve it.

The case for affirmative action

Harvard and UNC, supported by the Biden Administration, rely on decades of precedent. They argue that affirmative action helps remedy historic discrimination. Segregation laws denied Black and Hispanic Americans equal access to education until the 1960s. This exclusion limited career prospects and contributed to cycles of poverty that persist today.

Affirmative action aims to counteract these structural disadvantages. It helps students from underrepresented backgrounds compete fairly in admissions processes that often reward extracurricular opportunities requiring money and connections. It also increases minority representation in elite institutions, encouraging younger students to aspire to careers in fields where they have historically been excluded.

The case against affirmative action

Opponents argue that affirmative action entrenches racial divisions by defining applicants by race. They advocate for a colour‑blind system based solely on merit. Critics contend that race‑conscious policies unfairly disadvantage White and Asian applicants and undermine the principle of equal treatment.

Implications of a Potential Overturning

If the Supreme Court declares affirmative action unlawful, the number of Black and Hispanic students admitted to top universities is likely to fall. Supporters of the policy argue that this would undermine diversity in academia and in professions that rely on elite educational pathways.

Affirmative action is widely viewed as a temporary measure intended to pave the way for a future where it is no longer needed. Yet with only 1% of American CEOs coming from a Black ethnic background in 2022, that future remains distant.

The Court’s decision will have global repercussions. Other countries may reconsider their own policies. The ruling will also sit alongside recent landmark decisions, including the overturning of Roe v. Wade, reinforcing the Court’s central role in shaping social policy.

Conclusion

The Supreme Court’s hearings in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC represent a defining moment for affirmative action. The outcome will influence university admissions, workplace diversity and broader debates about equality. As the world waits for the Court’s certified judgment, the future of race‑conscious admissions hangs in the balance.