The Supreme Court met on Monday, October 31, to hear two oral arguments regarding affirmative action in higher education. The cases, Students for Fair Admissions Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College revive a long history of affirmative action related issues in the court. Students for Fair Admissions is a membership nonprofit organization based on the belief that “racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”

The phrase “affirmative action” was first brought into common usage by President John F. Kennedy when he created the Committee on Equal Employment Opportunity in 1961. This was during the civil rights movement, and following presidents followed the same guideline. In 1969, President Richard Nixon issued an executive order regarding equal employment and affirmative programs in the government, and higher education soon began to adopt the idea. 

Colleges and universities, especially elite ones, recorded unnatural growth in the number of minority students admitted in the following years. Many adopted these ideas and cited simply doing their part to help integrate higher education. 

Today, affirmative action looks different all over the country. States have banned and adjusted affirmative action legislation, and many cases have been taken to the Supreme Court. The first in the long, complicated list of cases was in 1971 and it involved a white student filing a lawsuit against the University of Washington Law School (DeFunis v. Odegaard). He cited reverse racism as the cause, and the case was ultimately dismissed because by the time it got to the Supreme Court, he was close to finishing his law degree. The term has now become more general, and now references any people of color, as well as women. 

Throughout its history dealing with the issue, the Supreme Court has been all over the board on the issue. For example, in 2003, the court ruled that race could be considered as part of the entire review of an applicant, but not have a specific value (Grutter v. Bollinger). A few years later, the same court prohibited high schools from using race as a “tie breaker.” In 2014, the Supreme Court upheld a complete ban on affirmative action in Michigan at state universities (Schuette v. Coalition to Defend Affirmative Action).

The discussion of affirmative action in colleges is a complicated one because there are a few basic problems that it is built on. For starters, many colleges are technically private, but it gets more complicated when the school accepts government grants and money. This blurs the line of rules that the school has to follow, and therefore the situation is heavily varied between schools.  

Additionally, there is a completely separate discussion exhibited in the consideration of race in college admissions as a whole, or simply looking at it as a single factor. It is easy to excuse statistics that would support affirmative action with the idea that gender or race was just one consideration in the admissions process, instead of a decisive cause. 

Going a step deeper, the discussion of whether these things should even be considered at all is brought up. For example, higher level education schools often use diversity as a pull factor for students, and this diversity is driven by affirmative action policies in admissions. The effort to expand diversity and cater to certain groups of people can then become disadvantageous in the eyes of the people who don’t necessarily benefit from it. Phrases like “reverse discrimination” and “reverse racism” have surrounded high profile cases brought to court all over the United States by White and Asian students. The issue is especially substantive at prestigious universities where enrollment numbers are more subject to more firm constraints. 

The University of Minnesota is an example of a school that uses diversity as a pull factor. The U of M Admissions page has a specific section devoted to diversity, quoting “Diversity is a core value of life at the University of Minnesota. Our campus community is made up of students and staff with different backgrounds, interests, and experiences. Living and learning in a diverse community prepares you for a future in a global society”. 

I also spoke with a former admissions counselor at the University of Minnesota Duluth and inquired about the role of affirmative action during the time he worked there. He said “If a student of color didn’t meet the usual admissions criteria, their file was put into  “special review.” The people who then reviewed these files were the heads of the minority services offices devoted to each of the minority groups, so of course there was an incentive to be lenient and pump up the numbers of students they would ultimately serve once they matriculated.

When it came to American Indian and Hispanic applicants, they were sometimes admitted below the usual ACT and High School Rank standards, but it wasn’t too much of a divergence, as I recall. With Southeast Asian, there was much more leniency. And with African American applicants, I honestly can’t remember a single applicant who was denied admission–this doesn’t mean there weren’t some, but it had to be an extremely rare case if there were any at all. In fact, I can distinctly remember two applicants who had ACT scores of 9 who were admitted; I also distinctly remember that a student was admitted with an ACT score of 8. 

So then you have to wonder if a school is serving the student well by admitting him or her very far below the usual standard and then not having adequate support services to ensure the student’s success (otherwise, the student might be racking up debt and a bad GPA that would preclude transfer to a different school after failing out of the U of M system).”

The two recent lawsuits brought to the Supreme Court by Students for Fair Admissions argue that Harvard and UNC violated Title VI of the Civil Rights Act of 1964 by intentionally discriminating against applicants who were Asian-American and using “racial balancing.” They argue that the institutions use racial affirmative action admissions strategies that go past the allowed “use as a partial factor.” Their request is that the Supreme Court overturn the 2003 decision mentioned above that protects colleges’ rights to consider race as part of an entire application review. If approved, admissions processes at the U of M and schools across the nation could be subject to dramatic change.