Conservative Supreme Court could sound death knell of affirmative action

REGIONAL STUDIES EAST ASIA PROGRAM, HARVARD

Recent graduates celebrate during Harvard University's commencement ceremonies.

ANALYSIS

The US Supreme Court added affirmative action to it's hit list of progressive positions it wants to undermine or eliminate. First it gutted the Voting Rights Act, then added provisions that practically abolished Roe v. Wade in some states and now, on Jan. 24,  the Supreme Court decided to take on affirmative action.

For over a half century, the Supreme Court and almost all the lower courts have affirmed the need to take into account race as a factor in school admissions. But this is not a moderate court. The Republican controlled Senate and the GOP's rightwing has taken over the highest court in the land, now controlling six of the nine Justices. This is a new court, prone to making decisions on a partisan basis instead of relying on precedent and the Constitution.

And Asian Americans are right in the middle of this scrum that will decided the future of affirmative action, a keystone policy that has guided the US towards equity in school admissions and job opportunities for over a half-century.

"Affirmative action, diversity, and anti-discrimination programs are essential to opening up opportunities for women and people of color, including Asian Americans, in all aspects of public life, including higher education, and have been foundational building blocks for a more just and equitable society," said a statement from Asian American Advancing Justice, a coalition of five AAPI legal aid organizations.

On Jan. 24, the high court decided to hear the arguments in the cases of Students for Fair Admissions v. Harvard University, and SFFA v. University of North Carolina.

In both complaints, SFFA contends that the admissions processes of the universities discriminated against qualified Asian Americans.

SFFA, a front for anti-affirmative action activist Edward Blum, purports to represent Asian American students who were allegedly denied admission to these schools in favor of less qualified students.

“Harvard and the University of North Carolina have racially gerrymandered their freshman classes in order to achieve prescribed racial quotas,” said Blum in a statement. “Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group.”

Lower courts and in two previous decisions by the Supreme Court have recognized the need to consider race as one factor in the school admission process in order to open its campuses to groups that have been underrepresented. The courts have admitted the necessity to retain affirmative action, which was first introduced in 1965 and received its first legal challenge in 1978.

The last time the High Court ruled on affirmative action was in 2016 involving the University of Texas admission procedures. At the time, the Justices ruled in favor of using race as a factor in admissions.

But that was then. Today, the Supreme Court is ruled by six conservative majority, including three who were appointed by Donald Trump. The Supreme Court will likely hear oral arguments on the case in October this year and render a ruling in 2023.

In order to avoid the appearance of "reverse discrimination," a flaw that plagued Blum's other attempts to prove affirmative action discriminated against White students, he convinced disgruntled Asian American applicants who failed to get admitted to Harvard to join a complaint against Harvard.

The legal complaint was filed in 2014. Although lower courts filed in favor of Harvard, Blum persisted and appealed the case to the U.S. Supreme Court in 2020. The Justices deferred hearing the case, but asked the U.S. Solicitor General to give Biden administration's position and recommendation. The Solicitor General last November recommended that the Justices  reject Blum's appeal.

Of the 2,230 first-year students accepted at Harvard in the fall of 2021, 25.9% were Asian American; Blacks made up 15.9%; Latinos, 12.5%; Native American, 1.1%; Native Hawaiian, 0.5%. Whites made up about 45% of the class of 2025, still the largest ethnic group.

“Race continues to unfairly limit educational opportunities for students of color,” said. Niyati Shah, director of litigation for the group Asian Americans Advancing Justice, after the court announced its decision to accept the case. “Race-conscious admission policies provide the chance for the student to tell their whole story, inclusive of their race, ethnicity, and lived experiences, in addition to their academic achievements.

Shah added: "Asian Americans are being used as a wedge in these cases to try to dismantle race-conscious admissions policies, but the fact is 70% of Asian Americans support affirmative action. ... We reject the use of Asian Americans as proxies to attack the constitutionality of race-conscious programs. Race-conscious programs should not be conflated with racial quotas or other forms of unlawful discrimination.”

EDITOR'S NOTE: I was admitted to the University of California, Berkeley under the affirmative action program. For additional commentary, news and views from an AAPI perspective, follow me on Twitter @DioknoEd.