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Supreme Court hears affirmative action case

With the Supreme Court's current conservative supermajority, the court is continuously overturning previously held precedents, the latest being affirmative action.

On Oct. 31, the Supreme Court heard two cases concerning affirmative action and race-conscious admissions: one against Harvard and the other against the University of North Carolina (UNC), both filed by Students for Fair Admissions (SFFA). The six conservative justices all seemed to express doubt that race should be considered in admissions processes to promote diversity, suggesting that the court may overturn precedent to rule affirmative action as unconstitutional.

During the hearing, conservative Justices Thomas and Alito expressed skepticism of considering diversity and underrepresented minorities, both adding that they felt the terms had little concrete definition. Liberal Justice Sotomayor argued that race impacted the quality of students' prior educational experiences as an applicant which must be considered, and Justice Brown Jackson argued that if admission boards could consider parental, veteran, or disabled status, it is strange to not be able to consider racial identity. Justice Brown Jackson has recused herself from the Harvard case, as she formerly served on one of Harvard's governing bodies.

An added complication to the admissions cases is the status of Asian Americans, who make up most of SFFA. Despite making up seven percent of the U.S. population, Asian Americans make up about 30 percent of Harvard, with similar statistics at peer institutions. While the public is not privy to how Harvard and peer institutions conduct admissions, most believe that including race in admissions will lower the proportion of Asian Americans in universities in order to promote the proportions of underrepresented minorities such as the Black, Latino, and indigenous populations. SFFA advances that the use of race in admissions is hurtful to the Asian American population, and that race should therefore not be considered in applications. SFFA, as well as Justice Alito, often describe admissions as a zero-sum game in which promoting any one racial demographic would hurt others.

Asian Americans are often called the "model minority," which is the myth that the success of Asian Americans illustrates that other minority groups can achieve similar success, despite other minority groups having a different history of racism in the U.S. While Asian Americans comprise most of SFFA, its president Edward Blum is a white conservative.

The question of affirmative action only really applies to more selective higher education institutions: most colleges accept almost all the students who apply, which means that purposefully creating diversity is not as much of an issue for them. The general U.S. population is approximately 13.6 percent Black, while Yale’s student body is only 6.4 percent Black, and Carnegie Mellon’s is only 2.8 percent Black, while nearby Point Park University’s student body is 14 percent Black, and that of the Community College of Allegheny County is 14.5 percent.

The phrase "affirmative action" is sometimes used incorrectly. The Cornell Legal Information Institute defines affirmative action as "a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future."

Affirmative action is sometimes conflated with racial quotas, which were ruled unconstitutional for public universities and government organizations in the case Regents of the University of California v. Bakke, but were ruled constitutional for private organizations in United Steelworkers v. Weber. Racial quotas is an informal term referring to the practice of setting a numerical target for how many applicants of a certain demographic to admit.

Affirmative action was initially promoted to remedy the centuries of racism that still entrench minorities today. Now, the argument has shifted to promoting diversity, and that diversity provides benefits to an educational environment. Both sides of the cases cite Brown v. Board of Education, the hallmark case that decided segregation in schools was unconstitutional. But the two sides disagree on the interpretation: the pro-affirmative-action side argues that Brown indicates the importance of educational diversity, while the anti-affirmative-action side argues that Brown indicates the importance of not considering what they frame as racial preferences.

Other precedents to the cases include Grutter v. Bollinger and Fisher v. University of Texas, which affirmed that race could be considered in undergraduate admissions if the affirmative action policy was "precisely tailored" to achieve diversity when there was no comparable race-neutral alternative. In both cases, SFFA says that UNC and Harvard have not adequately considered race-neutral alternatives to the admissions process. SFFA is also generally calling for Grutter to be overturned and that race should not be used at all in admissions.

In the majority opinion of Grutter in 2003, Justice O'Conner wrote, "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

During the hearing, conservative justices echoed a similar sentiment to this sentence in Justice O'Connor's opinion in 2003, expressing that it may be time to stop considering race in admissions. The three liberal justices are firmly against such a decision, but beyond Justice Roberts — who may temper the conservative opinion a bit — it seems unlikely they will have a strong sway over the conservative supermajority. Political pundits expect the court's ruling to take longer than average and to be issued in June.