The Cases Before the Court
On 31 October 2022, the Supreme Court began hearing Students for Fair Admissions v Harvard and Students for Fair Admissions v University of North Carolina. The organisation argues that the universities’ admissions policies unlawfully disadvantage White and Asian applicants by giving preference to Black, Hispanic and Native American students. Many observers expect the Court to restrict or overturn race‑conscious admissions, although a final decision is not expected until June or July 2023.
Background
Since the 1960s, legal precedent has allowed universities to consider race as one factor in admissions. Race cannot be the sole determinant, but it may be considered alongside academic performance and other indicators of potential.
Affirmative action has survived previous challenges. In 2003, the Supreme Court upheld the University of Michigan Law School’s policy 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. However, the current Court has shown willingness to revisit and overturn precedent, making the future of affirmative action uncertain.
The Debate Surrounding Affirmative Action
Both sides frame their arguments in terms of racial justice. Their disagreement lies in how best to achieve it.
Arguments in Support of Affirmative Action
Universities, supported by the Biden Administration, rely on decades of precedent and the historical context of racial discrimination. Segregation laws denied Black and Hispanic Americans equal access to education until the 1960s. This limited career prospects and contributed to long‑term cycles of poverty. Many families remain unable to afford the extracurricular opportunities that elite universities value.
Affirmative action seeks to address these structural disadvantages. It helps ensure that academically strong students from minority backgrounds are not overlooked simply because they lacked access to costly opportunities. It also increases representation at elite institutions, encouraging younger students from underrepresented groups to aspire to careers in fields where they have historically been excluded.
Arguments Against Affirmative Action
Critics argue that affirmative action reinforces racial divisions by defining applicants by race. They advocate for a merit‑based, race‑neutral admissions process. This position, however, often overlooks the structural advantages that benefit White applicants, including access to better‑funded schools and extracurricular opportunities.
Implications
If the Court overturns affirmative action, it is widely expected that fewer Black and Hispanic students will be admitted to top universities. Supporters of the policy argue that this would undermine efforts to diversify academic and professional spaces. Affirmative action is intended as a temporary measure to correct historic inequality, yet representation remains limited. In 2022, only 1% of CEOs in the United States came from a Black ethnic background.
The Court’s decision will have far‑reaching consequences. A ruling against affirmative action could influence other countries to reconsider similar policies. With the recent overturning of Roe v Wade still fresh in public memory, many are watching closely as another group waits for its future to be determined by the Court’s nine justices.
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