Affirmative Action As We Know It Could Change. Here’s What to Know.

Two cases targeting affirmative action are making their way through federal court. An organization representing Asian-American students, called Students for Fair Admissions, is suing Harvard University and the University of North Carolina at Chapel Hill for allegedly discriminating against Asian-Americans in their admissions process.

The Harvard trial concluded in November 2018, but it’s still awaiting a final judgment. Meanwhile, in the UNC case, both sides have filed dueling legal motions asking the judge to bypass a trial.

Both cases have the potential to go to the Supreme Court and even bring an end to race-based college admissions.

It’s easy to get overwhelmed by the headlines around these complex cases. Here are the main takeaways you should watch for as they continue.

1. Going to the Supreme Court is NOT a done deal for these affirmative action cases

Both sides of the Harvard case have said they plan to appeal the judge’s decision in District Court, regardless of what she does. But an appeal doesn’t guarantee a direct line into the Supreme Court. “Everyone in the media says this case is destined for the Supreme Court,” said Vikram Amar, dean of the University of Illinois College of Law. “The Supreme Court takes very, very, very few cases.” 

Amar pointed to Fisher v. University of Texas, another challenge to affirmative action that the Supreme Court heard only three years ago. Given how recent that case was, the Court may not take up the Students for Fair Admissions cases. Instead, the Justices may wait and see if colleges will experiment with new approaches to race-based admissions. 

2. Justice Brett Kavanaugh’s position is unknown — and it might be a surprise

If the challenges to affirmative action do get taken up by the Supreme Court, Justice Brett Kavanaugh might end up being the deciding vote. Justice Anthony Kennedy surprised people by voting to uphold affirmative action in Fisher v. University of Texas, and Amar says Kavanaugh may do the same.

“Now, I don’t know that Brett Kavanaugh will feel the same way that Justice Kennedy did about this. But I don’t think that Brett Kavanaugh would relish the notion that one of the first big cases that he hears as a justice would be to be the fifth vote to make such a major change, in such an important area of law,” Amar said.

3. The UNC and Harvard cases are significantly different

Although the same party is responsible for both lawsuits, the two lawsuits make different arguments. The Harvard case is claiming that Asian applicants are disadvantaged compared to white applicants, but this suit does not go into the benefits that African-American and Latino applicants receive. On the other hand, the UNC case argues that both white and Asian applicants are unfairly burdened by the advantages given to underrepresented minorities.

“[The UNC case is] a more old-fashioned attack on affirmative action,” Amar said. “The Harvard case is more exotic than the North Carolina case. If the North Carolina case gets to the Supreme Court, it is more likely to serve as a vehicle for the court to consider affirmative action as a whole”.

4. Asian students in the Harvard case are making a unique argument — that Harvard is lowering their rankings based on likability

While Harvard admissions officers consider grades, extracurricular activities and SAT or ACT scores, the Harvard trial revealed that they also consider “soft variables.” This can include an applicant’s general likability and leadership skills.

Having observed the trial, Amar questions why Asians, as a group, score significantly lower in the soft variables. “It’s hard to understand why as a group, [Asian-American applicants] would fare worse on those criteria unless there’s some implicit stereotyping bias going on,” he said.

5. Harvard doesn’t get a pass for being a private school

Previous challenges to affirmative action have targeted public universities, such as University of Michigan, University of Texas and UC Davis. Public schools are governed by the Equal Protection Clause of the 14th Amendment, which prohibits racial bias in public universities.
However, Harvard does receive federal funding.

“Congress passed Title VI that tells any university that receives public federal funding — which means any university, since public and private receive federal funding — that they have to also refrain from discrimination on the basis of race,” Amar said.

6. What about diversity when it comes to socioeconomic class?

A common argument against race-based admissions pushes for class diversity over racial diversity.

However, even within the same socioeconomic class, black and Latino students are less likely to graduate than white students. “So a poor person of color has an even stronger headwind in front of her than a poor white person. If you really want racial diversity in higher education, we’re not yet at the point where there’s really any good substitute,” said Amar.

7. So … should Asian-Americans be nervous about marking their race on college applications?

Well, it depends on the school. Professor Amar is a dean at the University of Illinois. “I don’t think here at the University of Illinois, there would be any statistical or other data to suggest that Asian-Americans are being biased in the undergraduate admissions process. But, you know,, the admissions process doesn’t have nearly as many subjective inscrutable criteria as the Harvard process does,” Amar said.