Is it Time to Rethink Affirmative Action? Severn Faculty Chimes In

The US Supreme Court in early 2022

On January 24th, the Supreme Court announced it will hear Students for Fair Admission (SFFA) v. President and Fellows of Harvard College and the University of North Carolina, the newest challenge to affirmative action in college admission. For some, the outcome of the cases seems grim, but the Supreme Court’s announcement brings affirmative action back to the forefront of attention and creates an opportunity to resume the conversation around race-conscious admission in the Severn community. Many students at Severn seek acceptance into the nation’s most selective universities, which evidently are the ones that consider the race and ethnicity of applicants because of the competitiveness of their admission. To understand the full scope of affirmative action in college admission and the consequences of making such effort unconstitutional, I invited several members of the Severn faculty to share their thoughts.

The history of affirmative action goes back to the Reconstruction Era, and it evolved throughout the progression of the Civil Rights Movement. “[The Civil Rights Act of 1964] was written for a specific reason. And it was, as most laws, written to remedy something. So, in the mid-1960s, the country needed to remedy racism against African Americans. . . [as well as] sexism,” said Ms. Renie Sotiropoulos. Ms. Sot teaches U.S. History and U.S. Government and Politics and is the Chair of the History Department at Severn. Subsequent executive orders extend the nondiscriminatory requirement of the Civil Rights Act to affirmative action to promote the employment, and in the context of higher education, admission of members of minority groups.

Because of the nature of affirmative action, it has been a source of conflict and numerous court cases, several of which have reached the Supreme Court. Up until now, the Court’s ruling had been consistent: “What the Supreme court said with the question is, no, you cannot quota your way into this. But what the Supreme Court did say was that race can be used as a factor, but not the factor,” Ms. Sot continued. The Supreme Court has previously struck down an admission policy at the University of California that allots a specific number of seats for minority applicants, and one in the University of Michigan that awards a specific amount of points to minority students toward their admission. However, neither these two rulings nor subsequent decisions prohibit the use of race and ethnicity as a factor in admission. In the majority opinion in Grutter v. Bollinger, Justice Sandra Day O’Connor affirmed the constitutional legitimacy of race-conscious admission “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

Mr. David Brunk and Mrs. Kimberly Coughlin, who both have professional experience in college admissions and now work in the college counseling office, voiced their support for Justice O’Connor’s assessment. In a joint statement, they said, “We agree that colleges have educational reasons to include race as a factor. Such a consideration, however, must not be quantified into a score or decision index. . . Rather, race should be considered alongside grades, scores, curiosity, intellectual engagement, and other characteristics in order to build a vibrant academic community.” They also pointed out that “[t]he U.S. Supreme Court has repeatedly recognized that a diverse student body improves the education of all students at a school because it prepares graduates to succeed in a diverse society.”

Some of the landmark affirmative action cases in recent history

Students for Fair Admission (SFFA), the organization that seeks to challenge affirmative action before the Supreme Court, however, disagrees. “Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group,” said Edward Blum, a legal strategist who participated in previous challenges to affirmative action and voting rights legislation as the founder of SFFA. The organization’s lawsuit against Harvard alleges that the University’s race-conscious admission is discriminatory and asks the Court to overturn Grutter to revoke constitutional protection of affirmative action. Responding to SFFA’s allegation, Lawrence Bacow, the president of Harvard, said a challenge to affirmative action “puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities.”

As discussed earlier, the Supreme Court has heard affirmative action cases on many occasions in the six decades after the Civil Rights Act, but all of those cases share a commonality: their plaintiffs are white and believed they were subjected to reverse discrimination as the result of affirmative action. What makes the SFFA cases, especially the suit against Harvard, stand out, then, is that the organization is suing on behalf of Asian-American applicants who believed their applications, despite being more competitive in terms of GPA and standardized test scores, were rejected because of race.

Asian students account for roughly 23% of Harvard’s undergraduate college. “A group that had been traditionally discriminated against now suddenly is in the catbird seat,” as Ms. Sot put it. She was more hesitant to make a judgment about the legal movement that calls for the complete elimination of race-conscious admission: “Affirmative action was a remedy to a very real problem. And that real problem was that you can’t have equal protection under the laws and equal opportunity when the system was built to not give equal opportunity based on a specific characteristic, in this case, race. . . [But] fixing an issue is a moving target. Are we still aiming at the right target?”

It is not hard to predict how the Supreme Court will rule. The liberal majority that allowed the Court to uphold affirmative action no longer exists. With the death of Ruth Bader Ginsburg and the appointment of Amy Coney Barrett, the precarious ideological balance of the Court again tilts toward the right, which might explain its eagerness to hear the challenges against affirmative action. When asked about her prediction on the decision, Ms. Sot said: “I will say that I think they will strike it down. I think [the vote might] be six to three, depending on who they pick [to replace] Breyer, and I think colleges will then have to revisit their admissions processes.” The oral argument for the two cases, now consolidated, will take place later this year.

“I think affirmative action as a general philosophy is a good one. I think the idea is that we need to be honest with ourselves and recognize that we have been sexist, and we have been racist,” Ms. Sot remarked at the end of our interview about how affirmative action is connected to the broader discussion around race and politics today, “At the same time, I think that colleges need to be cognizant that painting everyone with a broad brush is not being honest and not being fair. . . I think that colleges have to consistently be reminded, which is what [the two lawsuits] will do, that the admissions process is political, even if you don’t think it is.”

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