Today I will be examining another extremely popular court case dealing with affirmative action, Grutter v. Bollinger. Barbara Grutter, a white Michigan resident, submitted an application to the University of Michigan Law School in 1997. The school follows an unofficial policy, in which race is used as a factor in admissions in order to promote diversity in the student body. According to a review of the case published by Cornell Law School, “the policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for “substantial weight,” but it does reaffirm the Law School’s commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, who otherwise might not be represented in the student body in meaningful numbers. By enrolling a “critical mass” of underrepresented minority students, the policy seeks to ensure their ability to contribute to the Law School’s character and to the legal profession.”

When Grutter was denied admission to the school, she argued that the Law School had discriminated against her and was in violation of the Fourteenth Amendment. According to PBS, “in its defense, the school maintained that it did not employ racial quotas or percentages in its admissions process but simply sought a “critical mass” of underrepresented minorities in each entering class. The lower court found for Grutter, ruling that the law school’s admissions policy was unconstitutional. After a federal appeals court reversed the decision, Grutter appealed to the Supreme Court, which reviewed the case in 2003.”

Though there were several incredibly differing opinions in this affirmative action case, the Supreme Court, in a 5-4 opinion delivered by Justice Sandra Day O’Connor, found that the University of Michigan Law School’s use of race in their admissions process was not against the Fourteenth Amendment. The Court found that the Law School’s review of each student is highly individual and based upon so many factors that race cannot automatically determine any acceptance or rejection for any candidate. This case determined that affirmative action programs are constitutional as long as race is considered along with many other factors and each candidate is looked at wholly and as long as the end goal is “class diversity.” Justice O’Connor wrote, “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm non minority applicants.”

This week, I’ll be looking at a very recent Supreme Court case on affirmative action, Students for Fair Admissions (SFFA) v. Harvard. The lawsuit is headed by Edward Blum, an activist against affirmative action. Over recent years, Blum has pursued over two dozen lawsuits regarding affirmative action. In November of 2014, SFFA filed the lawsuit on the basis that Harvard’s race-conscious admission procedures are in violation of Title VI of the Civil Rights Act of 1964, which “prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.” SFFA believes that Harvard, and other universities, should completely disregard race in their application process.

In April 2015, Harvard recruited a group of diverse students (the Lawyer’s Committee) to defend their university’s race-conscious admission process. In 2018, in Boston’s federal District Court, two of SFFA’s six counts against Harvard were dismissed. These were “that Harvard was prohibited from considering race in any manner in admissions and that Harvard was prohibited from considering race beyond the “last few” admissions decisions.”In September 2019, the remaining counts were resolved with this decision, and it was decided that Harvard did not discriminate by race in their application process, did not partake in racial balancing, and created a beneficial diverse student body. Proceeding this decision, in February 2020, SFFA filed an appeal in the First Circuit. The first oral argument took place on September 16, 2020. This included an oral argument presented by Harvard’s Lawyer’s Committee.

In 2018, Sally Chen, a student representative on Harvard’s Lawyer’s Committee, wrote an article speaking on why she supports her school’s race conscious admissions policy. She argues that SFFA is using Asian Americans as a “cover” by exploiting the model minority myth to “suggest that Asian Americans’ work ethic easily vaults us over the barriers of racism and therefore, [they] do not need affirmative action.” Chen believes this to be untrue, as her herself does not align with the model minority myth. In her college admissions process, she highlighted how coming from a low income community of color impacted her work ethic and the obstacles she faced towards success. For these reasons, Chen believes Harvard’s race-conscious admissions policy should stay in place.

In January of 2022, SFFA published an article detailing their arguments against Harvard’s admissions policy. In reference to Supreme Court precedents which state that race can be used in admissions processes, SFFA stated they believe this case is a chance for the Court to fix their past mistakes. They argue that with this precedent, the Supreme Court included a “deadline,” and said that in 25 years race would not need to factor into admissions policies. They believe this deadline is here, and affirmative action means “unequal treatment to achieve equal results.”

While many support affirmative action, there are also many that do not. There are numerous reasons people give for why affirmative action should not take place.

A primary reason for why many people argue against affirmative action is that they believe it perpetuates discrimination. Though some believe affirmative action was created to put an end to race based discrimination, many disagree. They believe that if you work just as hard but are not a minority, you could be denied opportunities because of your race.

Further, opponents argue that affirmative action goes against meritocracy.Affirmative action is put in place in the name of equality, yet opponents believe many are not given “equal” opportunities. Doing the same amount of work may not always lead to the same results, for majorities and minorities, which opponents argue is unequal.

Another reason opponents of affirmative action cite is that it reinforces stereotypes. Affirmative action is based around the idea that minority groups are in need of acknowledgement, which may reinforcethe idea that they are “lesser” than majority groups.

Minority groups additionally may suffer from affirmative action in that more is expected from them. If they receive a position, that is often viewed as a result of their race rather than their credibility. They often are forced to work even harder in order to counter this idea, and prove themselves. In this way, affirmative action has the potential to lessen the achievements of minorities, and convey the idea that they are not able to succeed without a “handicap.”

Additionally, many argue that affirmative action doesn’t directly end race based discrimination. Personal bias will always exist no matter the level of diversity. Rather than focusing on affirmative action programming, many believe more work should be put into directly ending personal bias.

While proponents of affirmative action primarily argue that it promotes diversity, opponents argue the opposite. Even though affirmative action is largely meant to be in support of minorities, this is not always the case. For example, many Asian Americans who fit the “model minority” are opponents of affirmative action in colleges, as they believe they are rejected from schools due to their race, regardless of their high academic statistics.

The aforementioned reasons all serve as arguments for why many oppose affirmative action. In order to understand the complexity of the topic, it is important to understand the reasonings on each side of the argument.

This week, I’ll be looking at the reasons why people choose to support affirmative action. In order to decide whether or not it should occur it’s important to fully understand the reasonings on both sides of the incredibly complex argument.

One of the most prominent reasons for which proponents of affirmative action argue it must be implemented is that students of color are underrepresented on college campuses. Historically speaking, students of color were prohibited from attending universities at all for decades. Though enrollment rates have risen and affirmative action programs have been administered, students of color are even less represented at top universities than 35 years ago. Furthermore, studies have found that if an affirmative action ban were to go into place, students of color would experience a 23 percent decline in the likelihood of their admission to highly selective universities. Affirmative action strives to amend this inequity in education.

Another reason affirmative action has many supporters is that diversity can be beneficial to all. Students of all races are benefited by a diverse environment. Racially integrated classrooms have been shown to reduce bias, improve leadership skills, and impact self confidence. Many argue that income is a good replacement factor to ensure diversity in colleges. Income, however, cannot alone effectively promote diversity. The prevalence of the racial wealth gap and structural racism as a whole means that income does not increase diversity in the same way affirmative action does.

Many of those who oppose affirmative action argue that it unfairly discriminates against Asian Americans. They believe that many Asian American students who have high GPAs and standardized test scores are rejected from schools they deserved to get into. While it is true that many Asian Americans have “favorable” admissions criteria, opponents of affirmative action fail to account for the large portion of Asian Americans who do not fit the “model minority myth,” such as many of those who identify as Hmong and Cambodian.

These students of color face systemic barriers throughout their life and education. Things like exclusion, segregation, and underfunding have persisted throughout our country’s history. As a result, students of color often are unable to compete in some of the “traditional” factors of success colleges look at. Affirmative action provides nontraditional factors that are just as important to consider when looking at a student’s potential of success. These reasons and many more provide an overview of why many are supporters of affirmative action.

The term “affirmative action” was first used in reference to employment laws. Employers would act affirmatively, which meant they would actively work to treat their employees fairly.

Many associate the origins of affirmative action with the National Labor Relations Act of 1935, or the Wagner Act. This act stated that employers who discriminated unfairly based on race would be forcedto take “affirmative action.” Most employers did not openly welcome the act, however the Supreme Court ruled the act constitutional in 1937.

In 1935, President Eisenhower passed Executive Order 10479, which created an anti-discrimination committee. President Kennedy built upon this in Executive Order 10925, in which he stated that employers should “…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.”

In 1968, the Supreme Court ruled that school boards were required to provide a clear plan to end segregation. With this, affirmative action began to move from employment into education, the realm in which the term is most commonly now used.

In 1974, the first Supreme Court case was heard regarding affirmative action. In Marco DeFunis v. Odegaard, Defunis, a white man, stated that he was denied admission to the University of Washington law school because the school had instead admitted minority students who he believed were less qualified. The case was not heard until DeFunis was already in his last year of law school, so the case was never ruled on.

In 1978, Allan Bakke, a white student who had twice been denied admission to the University of California Davis medical school, filed a lawsuit against the University. He did this using the justification that he had a higher GPA and MCAT scores than students accepted to the program. At the time, the medical program at UC Davis reserved 16 out of 100 spots for minorities. The Supreme Court ruled that these quotas were in violation of the 14th amendment’s equal protection clause. However, the Court did state that using race as a factor when evaluating applications could beneficially promote diversity in higher level education.

For decades, this ruling provided an outline of what was and was not permitted when it came to affirmative action. Racial quotas were not allowed, however race could and should be a factor in the admissions process.

However in 2003, in Gratz. v. Bollinger, the Supreme Court ruled that the usage of a point system by the admissions office (minorities received more points when a certain number of points meant admittance) was unconstitutional. This further specified what was and was not permitted regarding affirmative action.

These cases set the precedent and guidelines for affirmative action. In recent years, affirmative action has become a highly debated issue, and these precedents have been called into question countless times. In order to consider these arguments, it is important to acknowledge the deeply rooted history of affirmative action.