Here’s the crash course you’re looking for before SCOTUS makes a new ruling.
Any day now, the Supreme Court is expected to hand down a decision regarding the fate of affirmative action in college admissions. Given the timing, it’s worth revisiting how this policy was initially meant to serve a completely different legal purpose than the one it serves today — and why the arguments for and against it feel so confusing right now.
How the concept of affirmative action was born — then quickly changed
In 1961, the term “affirmative action” first appeared in an executive order by President John F. Kennedy. The order aimed to require federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” In the years that followed, a number of institutions, primarily those in the educational space, began to enforce race-conscious admissions quotas in the name of this effort.
Ten years later, the first affirmative action case arrived at the Supreme Court: A white man challenged the policy after being denied admission to a college that had reserved 16 out of 100 spots for underrepresented minorities. Initially, lawyers involved in that case planned to defend affirmative action as an act of reparations, by saying it was justified by “the direct or indirect consequences of slavery, ‘white supremacy,’ and other historic prejudices.”
Then they changed their minds. In a bid to win over the conservative justices on the bench, the lawyers decided to argue instead that affirmative action is justified not by the need for reparations, but by the need for diversity, point blank.
In an amicus brief written for that case, a Harvard professor famously wrote, “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a Black student can usually bring something that a white person cannot offer.”
The justices voted 5-4 in favor of this argument. Thus, a new legal framework for affirmative action was born. The legal concept was no longer about “efforts to combat racism” or reparations for the “consequences of slavery.” In fact, it was no longer about race whatsoever — instead, it was about diversity, a justification so vague that it has left experts scratching their heads ever since.
In the decades since that 1974 case, numerous other affirmative action cases have made it to the Supreme Court. Each time, a handful of lawyers, college admissions boards, and justices alike have all struggled to come to any remote consensus about what “diversity” looks like and whether race does or does not play into that explanation.
How Gratz v. Bollinger drastically altered affirmative action
In the 2003 case Gratz v. Bollinger, the University of Michigan came under attack for a 150-point scale system it used to assess applicants for admission. According to that system, students of underrepresented ethnic groups were given an immediate 20 points. The lead plaintiff, a white woman named Jennifer Gratz, claimed this system had cheated her out of a fair shot at enrollment at Michigan. (That same scale also notably gave immediate points to students who went to elite high schools, earned AP credits, or who were legacy applicants, but these examples were largely sidelined during the case.)
In the majority opinion for Bollinger, Chief Justice Lewis Powell ruled in favor of Gratz, stating that it was unconstitutional for educational systems to use race quotas in any fashion. What’s more, he argued that the only valid part of Michigan’s points system was the effort to create a diverse student body.
Once again, the vague notion of “diversity” was reinforced as a foundational element of affirmative action — and other justifications for addressing inequity were established as being outside of affirmative action’s legal purview.
“When you look at the amicus briefs and the briefs to the Supreme Court on affirmative action, it’s always about diversity,” explains Jonathan Blanks, a research fellow at the Foundation for Research on Equal Opportunity. “It’s always framed as something that’s a positive good to society, and professions, and schools. And again, diversity is great, but we sort of lost sight of the original intent of affirmative action, the goal of actually trying to make up to the Black community for 400 years of slavery.”
Where does affirmative action stand today?
In 2003, for the Bollinger case, Justice Sandra Day O’Connor made a prophetic comment about the future of affirmative action, and of education in America overall. “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote.
Whether O’Connor’s prediction has rung true is a point of contentious debate.
When it comes to diversity in higher education, the demographic makeup is still overwhelmingly white, and the gap between wealthy and poor students continues to widen. The only exception can be found within the rising numbers of women in undergraduate and undergraduate programs — which has, notably, been framed largely as a crisis rather than a victory.
Just a few days after the 20 year anniversary of Bollinger, many legal observers now expect the Supreme Court could overturn the precedent for affirmative action entirely, thanks to a set of two cases on the docket: Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. Both cases allege that the affirmative action policies in schools have discriminated unfairly against Asian students, and it looks like the justices could be leaning toward accepting that point of view. In oral arguments, the majority of sitting justices expressed skepticism of the overall concept of race-conscious admissions.
Now, we might soon be facing a post-affirmative action world — though many would argue it’s not exactly the one O’Connor envisioned with such optimism 20 years ago.
“Even though there isn’t segregation in the country anymore, there’s still plenty of evidence of de facto segregation,” Blanks noted, “and we still really have to figure out how to get around that. Affirmative action is just one tool to try and make up for that. And if it gets struck down, then we need to find another way to try and address all those people being left behind.”
