Court Battles

With affirmative action in Supreme Court peril, changes could ripple beyond schools

Harvard student Samaga Pokharel, right, and other activists rally as the Supreme Court hears oral arguments
AP Photo/J. Scott Applewhite
Harvard student Samaga Pokharel, right, and other activists rally as the Supreme Court hears oral arguments on a pair of cases that could decide the future of affirmative action in college admissions, in Washington, Monday, Oct. 31, 2022.

The conservative-led Supreme Court’s signaling this week that it may rule against affirmative action in college admissions is raising alarm from businesses and leaders who say the move would ripple well beyond just schools.

U.S. Solicitor General Elizabeth Prelogar, arguing before the high court in defense of the race-conscious college admissions policies, said efforts aimed at racial diversity are crucial to the nation’s military and national security — not to mention big business.

Prelogar argued that, like the armed forces, corporate America “relies on having a diverse pipeline of individuals who had the experience of learning in a diverse educational environment and who themselves reflect the diversity of the American population.”

In the weeks leading up to the court’s consideration of the affirmative action cases, major corporations and experts have warned of how eliminating such practices could harm businesses’ efforts on diversity, equity and inclusion (DEI).

Big names such as Google, Apple, Adobe and General Motors are among the dozens of companies that have lined up to support race-conscious admissions policies at Harvard University and the University of North Carolina (UNC) in the Supreme Court fight.

In an amicus brief filed earlier this year, the companies, which collectively employ more than 4 million people worldwide, argued they have “a significant interest” in how schools consider applicants and “rely on the nation’s schools to educate and train their future workers.”

“While the benefits of diversity are real and tangible — and corporate DE&I programs seek to maximize those benefits — Amici do not recruit applicants in a vacuum,” the brief stated. “To succeed, these DE&I efforts depend on university admissions programs that lead to graduates educated in racially and ethnically diverse environments.”

“Only in this way can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce,” it continued, adding that the signed companies “specifically” depend on schools including Harvard and UNC, among others, for that pipeline.

Under current law, colleges can consider race as one among many factors in admissions decisions so long as there are no race-neutral alternatives.

Jason Williamson, executive director of the Center on Race, Inequality, and the Law at NYU School of Law, said affirmative action aims to redress longstanding racial inequality in the nation, while providing opportunities for those “who wouldn’t otherwise have them because of the structural racism and inequality that was built into the system.” 

“The other piece, which I think more people have been willing to acknowledge, is that diversity and encouraging people to learn how to work together, learn how to build bridges, and collaborate and so forth, is critical in a world that is becoming increasingly global,” Williamson added.

The Supreme Court has heard multiple calls from the business community defending such policies over the years since it considered Regents of the University of California v. Bakke. 

Alan Bakke, a white student denied admission to the school, mounted a legal challenge over the university’s racial quota system, which allotted a certain number of seats for students based partly on race.  

In its 1978 ruling, the Supreme Court found the school’s use of the system unlawful, but it ultimately decided colleges could factor in race when considering applicants to achieve more diversity.

In spite of affirmative action, Williamson acknowledged racial disparities persist in the nation’s top schools.

According to a 2017 analysis published by The New York Times, although Black and Hispanic students have seen some progress in admission rates at “less selective colleges” over the past few decades, those students were in fact found to be “more underrepresented at the nation’s top colleges and universities than they were 35 years ago.”

Experts attributed the glaring disparity to disadvantages faced by the students earlier on, but the analysis also found that states that banned affirmative action had also seen declines in admissions for minority students.

Research has shown that the vast majority of the nation’s undergraduate students attend moderately to less selective colleges, but experts say a ruling striking down race-conscious admissions for more selective schools could have implications that would extend through society.

“If it’s not important that we have diversity, or recognize that there are students and individuals from a range of backgrounds and racial identities who belong amongst the elite echelons, then I think that it causes people, as the courts have previously recognized, to question the legitimacy of those systems and processes,” said Sarah Hinger, senior staff attorney with the ACLU Racial Justice Program. 

The high court’s precedent on affirmative action in schools has withstood a handful of challenges similar to the current ones, often waged by white applicants rejected by top schools.

Students for Fair Admissions, the organization behind the cases involving Harvard and UNC, specifically argues that “both universities award mammoth racial preferences to African Americans and Hispanics.” 

The group, founded by Edward Blum, a conservative activist with a history of targeting affirmative action, has also claimed Harvard’s admissions process is discriminatory against Asian Americans. The school has denied the claims. 

The group’s suit has drawn pushback from advocates, including Sally Chen, equity program manager for the nonprofit Chinese for Affirmative Action, who said, “There was no evidence of discrimination against Asian Americans found as a result of affirmative action.” 

Chen also accused the suit of taking advantage of “the ways in which Asian Americans feel real concern over experiencing discrimination in society on the path to higher education.” 

She acknowledged there is room for improvement in how Asian American students are considered.

“For example, high school letters of recommendation, where Asian American students often faced some level of bias from their own home schools,” she said.

But she also said affirmative action and race-conscious policies “are part of the solution to addressing these barriers, they are not the cause of the issue.”

The court isn’t expected to make a decision in the cases until next year, but hopes are already dimming among supporters of affirmative action over how it will fare with the court’s expanded conservative majority, particularly in light of its repeal of Roe v. Wade earlier this year.

“The repeal of affirmative action, just like the repeal of Roe, was the explicit goal of the far right for more than the past decade, and they successfully seated conservative justices to help them achieve that goal,” said Kerrien Suarez, CEO and president of Equity in the Center.

Suarez, whose group works to advance race equity in organizations, added that if “affirmative action is repealed, [there] will be a ripple effect in other sectors, because the mandate for diversity, so to speak, will have been repealed.”

— John Kruzel contributed. Updated Monday at 6:47 p.m.

Tags Affirmative action Elizabeth Prelogar Supreme Court
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