Is This the End of the Road for Affirmative Action?
In 1996, California voters instituted a ban on affirmative action. Proposition 209 amended California’s Constitution, decreeing that the state could not grant preferential treatment to marginalized groups within public employment, education, or contracting. California’s ban has had a devastating impact, especially within the public university system. A recent study at UC Berkeley found that removing affirmative action programs “caused UC’s 10,000 annual underrepresented minority (URM) freshman applicants to cascade into lower-quality public and private universities.” During the 2020 elections, California voters were once again presented with a choice: bring back affirmative action or let the ban stand. Winning over 56 percent of the vote, the ban persists. Although nine states currently prohibit affirmative action, 41 states still have programs in place. They may not be in place for much longer.
Affirmative action has had a rocky road on the Supreme Court. It has been met with reason, fright, and ambiguity. The term itself first originated in 1961 in an executive order issued by John F. Kennedy, aimed at guaranteeing equity in employment. The concept of affirmative action was defined and reinforced by President Lyndon Johnson in a commencement speech he gave at Howard University and in an executive order issued by his administration. Then, in 1978, came famed case, Regents of the University of California v. Bakke. The landmark ruling limited the extent of affirmative action programs, striking down strict quotas. In a split decision, the Court in Bakke held that schools may use race as one of multiple admission factors, because diversifying campuses was a “compelling interest.”
Bakke did not settle the issue. It was split 4–1–4, with one of the justices holding down the middle, leaving many questions unanswered. For 20 years, cases trickled down the judiciary, eventually meeting their fate on the Supreme Court, ironing out wrinkles left by Bakke’s ambiguity. Eventually, in 2003 case, Grutter v. Bollinger, the Court held that diversity was an interest compelling enough to warrant race-conscious admissions policies. Grutter was a win, but it came with its quirks. In the majority opinion, Justice Sandra Day O’Connor noted that we won’t have use of affirmative action programs in 25 years.
Since 2003, the Court has continued getting more and more conservative. Chief Justice Roberts joined the Court in 2005, Justice Alito joined in 2006. Justices Scalia and Thomas were no longer lone dissenters. As the Court’s solidly conservative bloc hardened, affirmative action cases took bigger hits. In 2007, in Parents Involved v. Seattle, five justices ruled against a city initiative to reintegrate schools. In 2013, the Court came very close to ending affirmative action for good, in Fisher v. Texas. However decimated, affirmative action survived Fisher and has since held on through more challenges.
Last year, pillar of the Court’s liberal bloc, Justice Ruth Bader Ginsburg, passed away mere months before the election. Her devastating death created an opportunity for former President Trump and a Republican Senate to nominate a third conservative justice to our highest court. Rushed through right before President Biden won, Justice Amy Coney Barrett is as conservative as Justice Ginsburg was liberal. Her rulings and views on reproductive rights, coronavirus measures, religious liberties, and criminal procedure align her close to Justices Thomas and Alito. Staunch conservatives John Roberts and Brett Kavanaugh now hold the center. Affirmative action does not seem like it may hold on for much longer.
In 2014, a group of Asian-American applicants filed suit against Harvard University, claiming that the use of affirmative action in their undergraduate admissions is discriminatory. The group is backed by white conservative legal strategist, Edward Blum, founder of Students for Fair Admissions, an organization lobbying against affirmative action. Blum also funded both Fisher cases, and infamous case, Shelby County v. Holder, in which the Court struck down portions of the Voting Rights Act of 1965. This latest test to affirmative action, Students for Fair Admissions v. Harvard, is slowly making its way up to the Court. Many Court observers predict a solid 6–3 against affirmative action programs. Although today’s Court is more conservative than it has been in over 70 years, anything can happen. The newer justices, Gorsuch, Kavanaugh, and Barrett, may not be as entrenched in their views as the media relates. Chief Justice Roberts may surprise us again and attempt to hold down the center, in his love for legal precedent.
Affirmative action came out of a long and overdue wave to repair centuries of systemic injustice against Black and Indigenous Americans. Whichever way the Court sways in the next few years, it’s crucial we remember that American people still have the political power. Amidst recent renewed fervor for abolition, restorative justice, and systemic change, perhaps political organizing and people-driven movements are the way, not elite legal fights.
