Oral questions posed this week by Republican-appointed justices of the Supreme Court of the United States suggest that five of the nine members of the bench are ready to overturn a decades-long precedent that will consign race-conscious university admissions to history.
The cases, one against Harvard University and one against the University of North Carolina at Chapel Hill (UNC), were brought in 2014 by a conservative organisation called Students for Fair Admissions.
It claimed that by taking the race of under-represented minorities into account in admissions, the universities discriminated against white and Asian Americans and thus contravened the “equal protection of the laws” clause in the 14th Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964.
“There are lots of tools being used by schools for outreach, appearing and being more welcoming and accessible, greater transparency regarding costs and financial aid, etc.
“But a really important tool continues to be letting the folks who evaluate applications take into consideration an applicant’s race or ethnicity, and inviting applicants to reveal their full selves in their applications,” says Peter McDonough, vice-president and general counsel of the American Council on Education, which filed an amicus curiae (friend of the court) brief in these cases.
Civil Rights Act of 1964
Although the Supreme Court ruled that primary and secondary schools must be desegregated in the famous 1954 ruling in the case of Brown v Board of Education of Topeka, Kansas, the US government’s main effort to improve under-represented minorities’ enrolment in colleges and universities dates to the Civil Rights Act of 1964, which authorised affirmative action programmes.
These were soon attacked as quotas, a position the Supreme Court took in 1978 in the case of Regents of the University of California v Bakke. The court struck down the medical school’s admissions, which set aside 16 (out of 100) seats for minority applicants. The court did, however, allow that colleges and universities could take race into account, though without such set-asides.
In the 2003 case of Gratz v Bollinger, the Supreme Court ruled that one of the ways colleges and universities had devised to take race into account – giving 20 points on the 150-point admissions scale to under-represented minorities – was unconstitutional.
In his majority decision on that case, Chief Justice William Rehnquist said that by awarding these points solely on the basis of race, black and other under-represented minority applicants were placed ahead of white applicants, essentially forming a quota system through the back door.
The system made “race a decisive factor for virtually every minimally qualified under-represented minority”, he wrote.
Also in 2003, in the case of Grutter v Bollinger, the Supreme Court ruled in favour of the University of Michigan Law School’s admissions process that used race in order to ensure a “critical mass” of under-represented minorities that, the university argued, “ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and re-examine stereotypes”.