As we await the U.S. Supreme Court’s ruling on Students for Fair Admissions v. Harvard College and Students for Fair Admission v. University of North Carolina challenging the use of affirmative action and race-conscious college admissions, it’s important to consider what led to this point. This piece offers a brief history of affirmative action as well as of the major court cases seeking to end its use.

Affirmative action emerged during the Civil Rights Movement of the 1960s as a response to the systemic discrimination faced by racial and ethnic minorities, as well as women, in employment and educational opportunities. The concept aimed to ensure that marginalized groups were afforded equal opportunities for advancement and inclusion. Executive Order 10925 (E.O), signed by President John F. Kennedy in 1961, was the first official policy to implement affirmative action. The executive order stated that federal contractors should take, “affirmative action to ensure that applicants are treated equally without regard to race, color, religion or national origin.”

The Civil Rights Act of 1964 advanced the conversation forward by prohibiting employment discrimination by large employers (those with more than 15 employees), whether or not they had government contracts, and created the Equal Employment Opportunity Commission. In 1965 President Lyndon B. Johnson issued executive order 11246, requiring that “federal contractors not discriminate in employment and take affirmative action to ensure equal opportunity based on race, color, religion, and national origin.” Additionally, the E.O. established the Office of Federal Contract Compliance to enforce the order. In 1971 E.O. 10925 was amended to include sex (gender), and finally, the Rehabilitation Act of 1973 was signed by President Richard M. Nixon requiring agencies to submit an affirmative action plan to the Equal Employment Opportunity Commission for the hiring, placement, and advancement of individuals with disabilities.

The Assault on Affirmative Action in College Admissions

A mere 14 years after affirmative action policies began to be used to right historical injustices and systemic racism in the United States, the first assault on affirmative action in college admissions was levied. One of the most significant affirmative action cases was Regents of the University of California v. Bakke (1978). Allan Bakke, a White applicant, challenged the University of California medical school’s admissions policy, which set aside a specific number of seats for minority applicants. The Supreme Court’s ruling in this case prohibited racial quotas but allowed the consideration of race as one of many factors in admissions decisions. This decision marked a turning point, establishing diversity as a compelling interest for affirmative action.

Then, in 2003, affirmative action policies in admissions were challenged again in Grutter v. Bollinger and Gratz v. Bollinger. The University of Michigan’s undergraduate admissions policies were at the center of both cases. In Grutter, the Supreme Court upheld the university’s affirmative action policy, emphasizing the educational benefits of diversity. However, in Gratz, the Court struck down the undergraduate admissions policy, which awarded points to applicants solely based on race, deeming it too mechanistic and resembling a quota system.

After two failed attempts, the assault continued in 2013 in Fisher v. University of Texas at Austin. Abigail Fisher, a White student, challenged the admissions policy of the University of Texas at Austin in a case that reached the Supreme Court in 2013 (Fisher v. University of Texas at Austin I). The Court remanded the case to the lower court, directing it to apply a stricter standard of scrutiny. In 2016, the Supreme Court reaffirmed the constitutionality of the University of Texas at Austin’s holistic admissions policy in Fisher v. University of Texas at Austin II, emphasizing the importance of individualized review and narrowly tailoring affirmative action programs.

The most recent assault on the use of affirmative action in admissions involves two cases: one against a selective private university and another against a selective public university. Harvard University’s admissions policies came under scrutiny in the case of Students for Fair Admissions v. Harvard (2018). The lawsuit alleges that Harvard’s admissions practices unfairly disadvantaged Asian American applicants and violate Title VI of the Civil Rights Act of 1964 by discrimination on Asian American applicants in favor of White applicants. In the second case, Students for Fair Admissions alleges that the use of race in admissions violates the Fourteenth Amendment.

The assault on the use of race-conscious admissions has evolved over time. Just 14 years after its inception, the policy was first challenged, as if a few years of policy implementation would undue hundreds of years of discrimination. The same myth that racism doesn’t exist anymore still presides in 2023. Supreme Court’s decisions have and will shape, or eliminate, the parameters within which affirmative action can be implemented. As we await the decision of the current assault on the use of affirmative action in admissions, we must remember the history of the policy was to “ensure that applicants are treated equally without regard to race, color, religion or national origin.” Preventing institutions from considering race as a factor in admissions guarantees that applicants aren’t treated equally.