Introduction In 1935, the National Labor Relations Act of 1935, or the Wagner Act, referenced the term “affirmative action” as the right for workers to form and join unions.[^1] Instead of burying systemic problems and discriminatory practices, affirmative action meant the government had to “act affirmatively” and equally toward employees.[^2] This level of discrimination was not necessarily race-based, at least until the following decades. Executive orders issued by FDR, such as the Fair Employment Practices Committee, set the foundation for affirmative action, particularly when JFK executed the order 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.”[^3] Following the SCOTUS rulings on Green v. County School Board of New Kent County in 1968 and Brown v. Board of Education in 1954, affirmative action came to a head in the Regents of the University of California v. Bakke lawsuit.[^4] The ultimate ruling stated that race could be a factor in college admissions decisions.[^5] Racial quotas, while unconstitutional, were not mutually exclusive with race-conscious approaches or attempts to “redress” past systemic discriminatory practices i.e., toward minority, racial, and ethnic groups.[^6]
In sum, affirmative action today involves “direct, positive steps to increase the representation (especially in schools and workplaces) of groups that have faced discrimination in the past.”[^7] Under this broad definition, there are many types of affirmative action. Legacy admissions, early admissions, athletic recruitment, power, privilege, and money are viewed more favorably to race-based affirmative action. Despite affirmative action being an umbrella term for “any number of admissions policies,” the recent SCOTUS ruling banned the race factor of affirmative action specifically, not affirmative action as a whole.[^8] What is indisputable is the effectiveness of affirmative action in increasing diversity, Black enrollment to Harvard increased from 51 to 90 out of 1202 freshmen. Yet, decades later when California and other states banned affirmative action, there was a 30 to 40% decline in Black and Hispanic enrollment.
Legal History While affirmative action has roots back to the early 20th century, the legal precedent for it begins with the Regents of University of California v. Bakke (1978). At the time, the University of California Davis Medical School had reserved a set amount of its admits to be minorities. The school remained strict by this number, not accepting more or less minority than the designated amount. A white student Allan Bakke sued under the basis that he was denied admission to the university due to this rule. While the court determined that it was unconstitutional to have racial quotas it also determined that “a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis.“[^9] Since this case, schools have adopted their own affirmative action policies that account for an applicant’s race to promote diversity at their schools.
Case Backgrounds Students for Fair Admissions (SFFA) is a non-profit organization whose purpose is to “defend human and civil rights secured by law, including the right of individuals to equal protection under law.”[^10] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina were both filed in 2014, alleging that these institutions’ race-based admissions processes violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of 14th Amendment. More specifically, SFFA argued that by taking the race of college applicants into account, Asian American applicants were being discriminated against.[^11] Edward Blum, long-time affirmative action critic, led both cases. A diverse group of students from each institution testified in each trial to defend the importance of including race as a factor for consideration of college applicants.
Case Outcomes By 6 votes to 3, the Supreme Court determined that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful.[^12] Chief Justice John G. Robert Jr, as well as Justices Clarence Thomas, Samuel A. Alito Jr, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett composed the majority opinion, while Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented.
Chief Justice Robert explains the rationale behind the ruling, saying: “The Harvard and U.N.C. admissions programs cannot be reconciled with the guarantees of the equal protection clause. [Race-conscious admissions] unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful endpoints.” On the other hand, Justice Sotomayor argued that Brown v. Board of Education and the 14th Amendment intended to utilize affirmative action “to undo the effects of a world where laws systematically subordinated Black people and created a racial caste system,” particularly in the educational realm.[^13]
Implications There will be clear impacts from these supreme court rulings. The most heavily anticipated of these is a decline in the diversity of American universities. Because race is unable to be taken into consideration during the admissions selection process, it will become impossible for admissions officers to account for confounding race related issues–resulting from the influence injustices of the past still have on minorities and people of color today–when considering applications. As referenced previously in this report, this will lead to decreases in the minority makeup of institutions, such as what has been seen in California already[^14].
This will be felt by students at our University. President Ronald Daniels emailed a message to students and staff the day the rulings were publicized providing his comments on the cases. He stated that these rulings will likely: “Leave intact the programs we have created to recruit students who are the first in their families to attend college or who are from families with limited income…as well as those who come from rural and urban communities across our country and who hold diverse beliefs and perspectives. But there is no doubt that the success we have enjoyed in ensuring full participation of underrepresented students is jeopardized by this decision.” In other words, the programs designed to aid minority, low income, or first generation individuals would not be impacted. But, that a shift in the demographic makeup of our school towards decreased diversity is to be anticipated.
[^2]: https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/
[^3]: https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/
[^4]: https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/
[^5]: https://www.thirteen.org/wnet/supremecourt/rights/landmark_regents.html
[^6]: https://www.thirteen.org/wnet/supremecourt/rights/landmark_regents.html
[^7]: By the People Ch. 5
[^10]: https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
[^13]: Ibid.