The United States Supreme Court on Monday (January 24) decided to hear whether race should be a criterion in student admissions at Harvard and the University of North Carolina (UNC), sparking a debate on the policy of affirmative action followed by some higher education institutions in America.
The decision of the highest court has set the stage for a review of “race-conscious” college admissions in the US, which has been challenged several times in the past on the grounds that it discriminates against non-blacks, an argument that closer home finds echo among individuals and groups that oppose caste-based reservation.
Much like in India, the US Supreme Court has also mostly upheld affirmative action policies in its past judgments. However, the case will be keenly watched given that six of the nine justices currently on the bench are ideologically conservative, and the court has been of late amenable to taking up issues that the American right has long pushed.
What is the genesis of the latest case?
Hearing a petition filed by Virginia-based forum Students for Fair Admissions (SFA), the Supreme Court agreed to hold hearings on whether race should be allowed to be used as a determining factor in admissions to Harvard University and UNC.
The policies of both universities have been upheld by lower courts in separate orders. In 2018, a district court in Boston ruled in Harvard’s favour, which was upheld by an appeals court in 2020. In February 2021, the SFA moved the Supreme Court. The UNC obtained a favourable verdict in a lower court last year. Last November, the SFA petitioned the apex court to hear both cases together.
The previous administration of President Donald Trump had supported the SFA in the lower courts in the case against Harvard. But the Joe Biden administration is backing the university.
Who are the SFA?
The website of the forum says it is a nonprofit membership group of over “20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional”.
The president of the group is Edward Blum, a 70-year-old conservative legal strategist who was described by The New York Times in a 2017 profile as a “one-man legal factory with a growing record of finding plaintiffs who match his causes, winning big victories and trying above all to erase racial preferences from American life”.
Blum, according to this NYT article, has “orchestrated more than two dozen lawsuits challenging affirmative action practices and voting rights laws across the country”.
He was the litigant against Harvard in the lawsuit that argued that the university’s affirmative action policies amounted to an illegal quota system, and was behind the legal challenges in the Supreme Court against the consideration of race in admissions at the University of Texas, and to parts of the Voting Rights Act of 1965, an important civil rights law. He lost the first case, but won the second, according to The NYT report.
What stand has the US Supreme Court taken on affirmative action policies in the past?
From the 1970s onward, the court has adjudicated several times on matters related to race in admissions.
In the 1978 Regents of the University of California vs Alan Bakke case, the Supreme Court held that the university could not reserve seats for blacks, even though it could use race as one of the factors during admission.
Other important cases in the journey of affirmative action on American campuses include Grutter vs Bollinger (2003) involving the University of Michigan Law School, and Fisher vs University of Texas (2016).
Buildings in Harvard Yard are reflected in frozen puddle at Harvard University in Cambridge, Massachusetts January 20, 2015. (Reuters Photo: Brian Snyder, File)
How did these cases go?
In Grutter vs Bollinger, Barbara Grutter, a white resident of Michigan, argued that she lost out on entering the University of Michigan because of the institution’s policy of considering race as a criterion for admission.
While the university argued that it was promoting racial diversity, Grutter contended that the policy violated her right under the 14th amendment, which prohibits US states from depriving any person of life, liberty, or property without due process of law, and from denying anyone equal protection under the law. It was through this amendment in the Constitution that African Americans had obtained equal civil and legal rights.
In a 5-4 verdict, the court ruled in favour of the University of Michigan, saying the “Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
However, the majority opinion added that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” leaving a window open for reviews in the future.
Then Chief Justice William Rehnquist who was among the dissenters, said the law school’s programme had been revealed as a “naked effort to achieve racial balancing” instead of racial diversity. Justice Rehnquist also termed the 25-year sunset clause as “vague”.
In another ruling delivered in the same year in the Gratz v. Bollinger case, the court made it clear that institutions cannot award points to candidates of minority communities on a predetermined basis without individual assessment of their “diversity contributions”.
And what was the 2016 ruling?
Abigail Fisher, a white woman who had been denied admission at the University of Texas at Austin, had claimed in 2008 that by considering the race of the applicants, the university was violating the 14th amendment.
The university said that its policy was in consonance with the law. The lower court ruled in UT-Austin’s favour, which was affirmed by a US court of appeals.
In 2013, however, the Supreme Court vacated the ruling of the lower court and asked it to examine the case again. After the lower court once again ruled in the university’s favour, the Supreme Court once again took up the matter based on a fresh plea from Fisher, and ultimately upheld UT-Austin’s policy in a 4-3 judgment.
In the majority opinion, Justice Anthony Kennedy observed that though a college must “continually reassess” its need for race-conscious review, UT-Austin appears to have done it with care. The dissenting opinion, which was joined by Chief Justice John Roberts, rejected the assertion that the policy promotes diversity, saying UT-Austin had “failed to define that interest with any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other particular interest”.
Do all colleges or universities in the US use race as a factor during admissions?
No. Nine states — Oklahoma, Idaho, Washington, Michigan, Nebraska, Arizona, New Hampshire, Florida and California — have outlawed affirmative action based on race.
Also, while there are no official estimates on how many colleges or universities consider race during admissions, unofficial estimates collated by nonprofits such as College Board say only a small fraction of the approximately 6,000 colleges in America do so.
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An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, on Nov. 2, 2020. (AP Photo/Patrick Semansky, File) 
Buildings in Harvard Yard are reflected in frozen puddle at Harvard University in Cambridge, Massachusetts January 20, 2015. (Reuters Photo: Brian Snyder, File)
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