Harvard, UNC Supreme Court affirmative action cases revive long history

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  • Lawsuits before the Supreme Court over race-conscious admissions policies are the latest chapter in the contentious history of affirmative action.
  • By the late 1960s, many colleges had begun to consider race as one of many factors in  admissions, amid the civil rights movement and urban uprisings.
  • In the decades after affirmative action was instituted, selective colleges saw dramatic increases in their numbers of Black, Latino, and Native American students, experts say.
  • Along with the gains, came the backlash, with some white students equating affirmative action with “reverse discrimination.”

In a few weeks, the Supreme Court will hear a challenge to race-conscious admissions policies at two universities, the latest chapter in the contentious history of affirmative action in higher education. 

For decades, affirmative action has been used to improve equity and diversity in workplaces and colleges.

But the two lawsuits from Students for Fair Admissions, an anti-affirmative action group founded by conservative legal strategist Edward Blum, accuse the University of North Carolina and Harvard of discriminating against Asian American students and giving unfair preference to Black and Hispanic applicants — challenging decades of legal precedent. In the lawsuit against UNC, the group says the school also discriminated against white applicants.

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The universities say their admissions practices follow court precedent allowing race to be one of many considerations when reviewing an applicant.

But since the last time the Supreme Court weighed in on an affirmative action case in 2016, when it upheld the consideration of race in admissions by the University of Texas, the court has added more conservative justices who are skeptical of the practice.

The high court is scheduled to start hearing the cases separately on Oct. 31. Legal experts and historians say the stakes are high for affirmative action, which was instituted to help redress a legacy of inequality.

What is affirmative action? 

The modern meaning of the term came to be during the Kennedy administration. The phrase affirmative action appeared in a Kennedy-era executive order establishing the president’s Committee on Equal Employment.

The order mandated that government contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”

Hobart Taylor, Jr., a Black lawyer, is credited with  inserting the word affirmative into the order. Torn between the phrases positive action and affirmative action, Taylor chose the second option because it was more “alliterative,” according to a 1995 New York Times story.

President Lyndon Johnson, a Democrat, later strengthened the policy to require companies to take steps to increase diversity among their employees and incorporated sex discrimination. He also signed the Civil Rights Act of 1964 — landmark legislation that banned discrimination in public spaces, schools and employment discrimination. 

At a Howard University commencement address, Johnson laid out what is widely considered to be the underpinning of affirmative action.

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.

“Thus it is not enough just to open the gates of opportunity,” Johnson said to the audience at the historically Black university. “All our citizens must have the ability to walk through those gates.”

Affirmative action grows

President Richard Nixon, a Republican, also expanded affirmative action, most notably with his Philadelphia Plan. Under the plan, federal contracts were required to include goals for hiring people of color in building trades.

And by the late 1960s, many colleges had begun to consider race as one of many factors in weighing college admissions amid the civil rights movement and urban uprisings.

Mark Naison, a history and African American studies professor at Fordham University, said affirmative action in education came in response to Black unrest, “but soon expanded to a commitment to utilize the talents of every group that had been underrepresented or victimized by discrimination.”

What was the impact of affirmative action?

Affirmative action led to more Black college graduates and Black doctors, lawyers and teachers, said Tufts University sociology professor Natasha Warikoo, citing an extensive study of graduates of selective colleges.

In the decades after affirmative action was instituted, selective colleges saw dramatic increases in their numbers of Black, Latino, and Native American students, experts say. 

In 1965, Black people made up “barely 1 percent” of American law school students, with most of them going to Black schools, according to the book “The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions.” 

According to one tally, Black students accounted for 7.6 percent of incoming law students in 2019. 

White women and Asian Americans also gained ground because of affirmative action.

Warikoo, author of a new book called “Race at the Top: Asian Americans and Whites in Pursuit of the American Dream in Suburban Schools.”, said diverse learning environments can lead to greater feelings of self-confidence and intellectual engagement. 

She added: “A diverse college experience is associated with more positive racial attitudes and greater civic engagement.”

Is affirmative action still in effect today?

Along with the gains, came the backlash, with some white students equating affirmative action with “reverse discrimination.”

In 1996, California banned affirmative action; several other states soon passed bans of their own. But a study found that the result was fewer Black and Hispanic University of California graduates since 1998, the year the ban was fully implemented. 

An effort to overturn California’s ban failed in 2020. 

Critics also have said affirmative action engulfs Black students with a cloud of skepticism because they are perceived as not having sufficient credentials to otherwise gain a spot at a university — a suspicion held long before affirmative action emerged in higher education. 

“Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group,” Blum said in a statement.

Affirmative action and the high court 

Aggrieved students have mounted legal challenges for decades over the use of race in admissions policies.

These have been four significant Supreme Court cases related to affirmative action to date:

  1. In the Regents of the University of California V. Bakke (1978), the school’s medical program at Davis reserved 16 of 100 spots for minority students. A white man who was twice denied admission filed a lawsuit, claiming he was denied entry because of his race. The high court ruled in his favor, saying he should be admitted. The court noted that race could be a factor in admissions but rejected racial quotas.
  2. In Gratz v. Bollinger (2003), the University of Michigan used a points-based system in its undergraduate admissions, adding points to applicants from certain minority groups. The court said the plan was too broad.
  3. In Grutter v. Bollinger (2003), the University of Michigan’s law school used race as one of many factors in the school’s admissions process. The court said this plan was not too broad. 
  4. In Fisher v. University of Texas at Austin (2016), a white woman denied admission to the college claimed that the school’s consideration of race as part of a holistic admissions process was discriminatory. The court affirmed the program, saying there’s a compelling interest in the “educational benefits that flow from student body diversity.”

Contributing: John Fritze, USA TODAY Supreme Court correspondent

Tiffany Cusaac-Smith covers race and history for USA TODAY. Click here for her latest stories. Follow her on Twitter @T_Cusaac

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