May 31, 2023

As the Supreme Court weighs a ban on Affirmative Action, advocates say such a ruling would negatively harm campus diversity and could be used to target other diversity efforts.

The U.S. Supreme Court is expected to rule on two cases this month that could prohibit consideration of race in college admissions, undoing a 45-year history of Affirmative Action dating back to 1978.

Last October, conservative activist Edward Blum, president of Students for Fair Admissions, filed a lawsuit against Harvard claiming it discriminated against Asian-American applicants. Lower courts found no evidence of that claim, and no students testified against the current race-based policies at Harvard or in a separate suit involving the University of North Carolina.

Still, given the Supreme Court’s conservative majority, many expect an end to the policy, which supporters say has helped boost enrollment in colleges and universities for historically underrepresented groups.

“Progressives, patriots, and free thinkers of all colors and creeds and sexual orientations need to unite in the struggle to preserve the core American principles of inclusivity and multicultural democracy,” said civil rights lawyer Lisa Holder, president of the Equal Justice Society (EJS) in Oakland, California.

Holder spoke with reporters last week during a news briefing organized by Ethnic Media Services . She noted Affirmative Action is the best way to undo the historical legacy of inequality and discrimination in higher education, adding that California schools would become more segregated without it.

“We’re looking at apartheid schools where children of color are not getting access to opportunity. That is un-American,” she said. Holder noted the consensus among social scientists that diverse educational environments are 35% more productive than those that are more homogeneous.

Students who testified before the high court in both the Harvard case as well as a separate case involving the University of North Carolina – also filed by Blum’s group – stressed the advantages of being part of a more diverse student body.

Lisa Holder, President of Equal Justice Society (EJS), says that her law students were much more engaged when they were in a diverse classroom setting, while her homogenous classroom didn’t provide the enriching experience of multiple perspectives.

Echoes of Roe v. Wade

In its 1978 Regents of University of California v. Bakke decision, the Supreme Court ruled that schools’ use of Affirmative Action policies to enhance student diversity is constitutional.

Tomas Saenz, president of the Mexican American Legal Defense and Educational Fund (MALDEF) and former member of the Los Angeles County Board of Education – where he served for two decades – worries this current court is poised to overturn that longstanding precedent.

“We don’t know when it will come down,” Saenz said. But given the court’s stated views on race-conscious Affirmative Action policies, he expects the justices will overturn it just as they did with the Dobbs ruling last year overturning Roe v. Wade.

“I consider that to be the likely outcome,” he said, noting the Supreme Court revisited the issue of race conscious Affirmative Action in higher education on three separate occasions. Each time the court majority reasserted that the Bakke precedent continued to be the law.

“So, overturning that precedent would be extraordinary and on a par with the Dobbs decision of last year,” Saenz said.

He also predicted that opponents of Affirmative Action would seek to expand the court’s rationale. “This case will have nothing whatsoever to say about Affirmative Action in employment or contracting. And anyone who asserts otherwise, is misleading you,” Saenz said.

“You will hear folks from the right assert that somehow this Supreme Court decision also means that ethnic studies, even critical race theory, must be eliminated from schools.” On the contrary, Saenz says the decision will say nothing about curriculum.

Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense and Educational Fund (MALDEF) says that a ban on Affirmative Action could bring with it misconceptions and over-interpretations about what a ban may include.

Impacts on campus diversity

John C. Yang, president and CEO of Asian Americans Advancing Justice (AAJC) reiterated that lower courts found no evidence of discrimination against Asian-Americans in Harvard’s admissions process, which is the basis of the lawsuit.

“An admissions process considering race… remains necessary to ensure that equally qualified students from communities of color have the same access as privileged white students,” Yang said.

He noted 28% of the incoming Harvard class are Asian-Americans and their numbers have quadrupled since 1978 when the Bakke decision was issued.

“Any suggestion that somehow Asian-Americans are being discriminated against is just belied by these simple facts,” Yang continued. If Affirmative Action is overturned, he anticipated campus diversity at Harvard would decrease from 14% to 6% for Blacks and from 14% to 9% for Latinos.

“At the end of the day, we have to recognize that we are not in a race-blind society. Our lived experiences should not be up for debate,” Yang said.

John C. Yang, President and Executive Director of Asian Americans Advancing Justice (AAAJ), discusses the impact race has on identity and how it relates to the college admissions process.

What about legacy admissions?

Michele Siqueiros has been supporting greater college access for students of color since 2004, and says it hasn’t been that long since women, Black, Latino, Indigenous and Asian-American students were even permitted to attend universities.

“Affirmative Action alone was never intended to be the panacea,” said Siqueiros, president of The Campaign for College Opportunity, a California-based non-profit.

“We must do everything in our power to provide all students an equal opportunity to pursue a college education,” she stressed, adding that with the anticipated SCOTUS ruling more will need to be done to ensure universities do not discriminate against students of color.

Siqueiros also pointed out that conservative opponents of Affirmative Action have nothing to say about legacy admissions – which can account for a quarter or more of all admissions at Ivy League schools like Harvard – or about recruiters exclusively visiting rich, wealthy, and predominantly white high schools.

“There are a lot of practices in higher education that should be challenged and removed,” said Siqueiros. “It’s really unfortunate that Affirmative Action is the one that’s being attacked today.”