A Legal History of Affirmative Action

By: Mia Xia

Edited By: Renan Dennig and Anna Westfall

In American society, race plays a significant role in influencing and determining educational outcomes. Throughout a student’s entire educational journey, race consciousness lingers in the minds of BIPOC families. They are forced to worry about how a child’s identity could hinder their ability to learn if the wrong school is chosen. In attempts to address the historical inequities present in the educational system, American universities have made efforts to implement affirmative action measures that allow admissions to account for a student’s racial identity. However, multitudes of white Americans have criticized the practice. They argue that affirmative action discriminates against white students to uplift undeserving students. As a result, with the founding of Students For Fair Admissions Inc., a non-profit that “believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional,” legal advocates have proposed questions of the legality of affirmative action in state and federal courts as a tactic to end the practice. [1] The most recent legal case, Students For Fair Admissions Inc. v. President & Fellows of Harvard College, questions whether or not affirmative action discriminates against Asian American students. With the pending hearing from the Supreme Court, the course of education may change drastically.

The practice of affirmative action began with President John F. Kennedy’s executive order in 1961 requiring government contractors to utilize affirmative action to “ensure that applicants are employed…[and] treated during employment, without regard to their race, creed, color, or national origin.” [2] While affirmative action began as an accountability measure for businesses that received federal funding, the procedure has been broadened to include educational institutions that have discriminated against students of color in the past, using affirmative action as a remedy for their historical injustices. [3] Various laws following President Kennedy’s executive order have been passed to uphold and reaffirm anti-discriminatory practices, notably Title VI of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973. [4] In terms of Supreme Court cases, most decisions have upheld the cruciality of affirmative action as a means to ensure that BIPOC students are not actively discriminated against in admissions processes. With majority decisions in Brown v. Board of Education (1954), Regents of the University of California v. Bakke (1978), and Grutter v. Bollinger (2003), the Supreme Court has consistently recognized the intrinsic purpose of affirmative action and its continued necessity within an inequitable educational system. [5] 

Following these notable legal challenges, in Fisher v. University of Texas (2013 & 2016), Students for Fair Admissions Inc. (SFFA) brought forth a lawsuit on behalf of two white students, Abigail Fisher and Rachel Michalewicz. [6] Students For Fair Admissions sought to challenge affirmative action practices by attempting to identify violations of the Equal Protection Clause of the 14th Amendment that mandates equality under the law. [7] Interestingly, affirmative action actually benefits students like Fisher and Michalewicz as white females. In a report from the American Association of University Women in 2009, it was found that white women were receiving most bachelor’s, master’s, and doctoral degrees. In addition, the number of women physicians tripled over three decades, growing from 7.6% to 25.2%. [8]

In the first instance of the case, Fisher I, the Supreme Court ruled on a 7-1 decision in favor of Fisher on the basis that UT’s admissions policies must be reviewed under strict scrutiny, and ruled that the lower Court of Appeals’ decision in favor of UT Austin did not take the decisions made in Regents or Grutter into enough consideration. [9] The only dissenting opinion from Justice Ginsburg argued that race was only one factor in a holistic admissions process, which was permissible under judicial precedent. She noted the harms of color-blind admissions as an attempt to overlook the historical discrimination students of color have faced. [10] As a result, the case was remanded to promote further deliberations on the university’s admissions practices. 

In the second instance of the case, Fisher II, the Supreme Court upheld in a 4-3 decision that UT Austin's affirmative action policy was constitutional and encouraged more educational opportunities and a diverse student body. [11] Noting the past decision made in Grutter v. Bollinger, where affirmative action policy was allowed but racial quotas were deemed unconstitutional, the majority opinion emphasized their opposition towards utilizing quotas and percentages of a certain racial group as a means of diversifying a university’s student body. [12] 

While these decisions have continued to support and reaffirm the constitutionality of affirmative action, Students for Fair Admissions has continued in its efforts to dismantle the practice on the basis of unfair admissions practices against white students. With the unsuccessful result of Fisher II, the organization began to advocate for color-blind admissions under pretenses that affirmative action violates the Civil Rights Act in 2014, arguing that Harvard has discriminated against Asian American students in their admissions processes. [13] From research conducted by SFFA, the organization argued that Asian American applicants had received significant penalties relative to white students, even if they had stronger academic and extracurricular performance and achievement. [14] However, a subsequent decision issued by the 1st Circuit Court of Appeals followed precedent by upholding the constitutionality of race-conscious admissions. [15]

SFFA v. Harvard currently awaits its Supreme Court hearing in 2022. With a lawsuit against one of the most elite and profound institutions in American education, the Supreme Court could change the course of educational opportunities to adopt a more “color-blind approach.” [16] With Justices Gorsuch, Kavanaugh, and Barrett serving as new additions to the bench since the last affirmative action case, Fisher II, it is entirely uncertain what the outcome will be. Nevertheless, the elimination of affirmative action would pose detrimental consequences for efforts to address and alleviate historical injustices imposed upon BIPOC students. While white Americans perceive affirmative action as a practice that creates “easier” pathways to admissions for BIPOC students, in reality, the process has most benefited and served white females. [17] In addition, even if SFFA has directed its attention towards representing Asian Americans, 70% of Asian American voters actually support affirmative action. [18] Rather than disparaging a practice that had to be implemented to reduce a gap created by centuries of oppression, America ought to critique the foundations of the American university system that have always favored the most privileged applicants. 

NOTES:

1. About, (Students for Fair Admissions), www.studentsforfairadmissions.org/about/

2. Affirmative Action, (Legal Information Institute), www.law.cornell.edu/wex/affirmative_action. 

3. Affirmative Action.

4. Affirmative Action.

5. Martha S. West, The Historical Roots of Affirmative Action, (History Lessons, The Women’s Review of Books, vol. XIII, 1996), lawcat.berkeley.edu/record/1116312/files/fulltext.pdf.

6. Allyson Waller, Lawsuit Targeting UT-Austin’s Affirmative Action Policy Dismissed by Judge, (The Texas Tribune, 27 July 2021), www.texastribune.org/2021/07/27/ut-austin-affirmative-action.

7. Fisher v. University of Texas, (Oyez), www.oyez.org/cases/2012/11-345. 

8. Victoria M. Massie, White women benefit most from affirmative action — and are among its fiercest opponents, (Vox, 23 June 2016), https://www.vox.com/2016/5/25/11682950/fisher-supreme-court-white-women-affirmative-action

9. Fisher v. University of Texas. 

10. Fisher v. University of Texas. 

11. FISHER v. UNIVERSITY OF TEX. AT AUSTIN, (Legal Information Institute, 23 June 2016), www.law.cornell.edu/supremecourt/text/14-981.

12.  FISHER v. UNIVERSITY OF TEX. AT AUSTIN.

13.  P. R. Lockhart, Students for Fair Admissions v. Harvard, the Affirmative Action Case, Explained, (Vox, 19 Oct. 2018), www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.

14.  Students for Fair Admissions v. President of Harvard College, (Casetext, 12 Nov. 2020), casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll-1.

15.  Students for Fair Admissions v. President of Harvard College.

16.  Jennifer Lee, Affirmative Action and Anti-Asian Racism, (Science, 3 Feb. 2022), www.science.org/content/blog-post/affirmative-action-and-anti-asian-racism.

17.  Sally Kohn, Affirmative Action Has Helped White Women More Than Anyone, (Time, 17 June 2013), time.com/4884132/affirmative-action-civil-rights-white-women.

18.  Lee, Affirmative Action and Anti-Asian Racism.

BIBLIOGRAPHY:

“About.” Students for Fair Admissions, www.studentsforfairadmissions.org/about/.

“Affirmative Action.” Legal Information Institute, www.law.cornell.edu/wex/affirmative_action. Accessed 8 Feb. 2022.

“FISHER v. UNIVERSITY OF TEX. AT AUSTIN.” Legal Information Institute, 23 June 2016, www.law.cornell.edu/supremecourt/text/14-981.

“Fisher v. University of Texas.” Oyez, www.oyez.org/cases/2012/11-345. Accessed 8 Feb. 2022.

Kohn, Sally. “Affirmative Action Has Helped White Women More Than Anyone.” Time, 17 June 2013, time.com/4884132/affirmative-action-civil-rights-white-women.

Lee, Jennifer. “Affirmative Action and Anti-Asian Racism.” Science, 3 Feb. 2022, www.science.org/content/blog-post/affirmative-action-and-anti-asian-racism.

Lockhart, P. R. “Students for Fair Admissions v. Harvard, the Affirmative Action Case, Explained.” Vox, 19 Oct. 2018, www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.

Massie, Victoria M. “White Women Benefit Most from Affirmative Action - and Are among Its Fiercest Opponents.” Vox, 23 June 2016, www.vox.com/2016/5/25/11682950/fisher-supreme-court-white-women-affirmative-action. 

“Students for Fair Admissions, Inc. v. President of Fellows of Harvard College.” samv91khoyt2i553a2t1s05i-wpengine.netdna-ssl.com/wp-content/uploads/2014/11/SFFA-v.-Harvard-Complaint.pdf. Accessed 7 Feb. 2022.

“Students for Fair Admissions v. President of Harvard College.” Casetext, 12 Nov. 2020, casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll-1.

Waller, Allyson. “Lawsuit Targeting UT-Austin’s Affirmative Action Policy Dismissed by Judge.” The Texas Tribune, 27 July 2021, www.texastribune.org/2021/07/27/ut-austin-affirmative-action.

West, Martha S. “The Historical Roots of Affirmative Action.” History Lessons, The Women’s Review of Books, vol. XIII, 1996, lawcat.berkeley.edu/record/1116312/files/fulltext.pdf