By Ayodele Ayoola
The United States Supreme Court recently ended its session in late June with its landmark ruling to overturn Roe V. Wade, eliminating the constitutional right to abortion. In January, the court agreed to decide whether race-conscious admissions programs, or affirmative action, are lawful, and many are wondering if this will be the next on the chopping block.
The court will be hearing affirmative action cases with Harvard University (Harvard) and the University of North Carolina, Chapel Hill (UNC) this fall and have the possibility of reversing the longstanding precedent of protecting race-conscious admissions programs.
According to Cornell Law School, affirmative action is a series of policies in place intended to bolster diversity. These policies increase the chances of Black students getting accepted into college by using race as a beneficial factor when sorting through applicants.
In Maryland, schools like the Naval Academy, University of Maryland (UMD), and Coppin State University (Coppin) factor race into consideration when admitting students.
With affirmative action, Black students who may not have an exemplary academic record due to systemic disadvantages have a better shot at obtaining higher education. The possible outlawing of the policies has supporters fearing that institutions may use the ruling as leeway to curb campus diversity.
“A ruling declaring affirmative action as unconstitutional provides a cover for institutions who intend to decrease campus diversity since they can argue that their intentions are not discriminatory but rather an adherence to legal precedent,” said Professor Nikongo BaNikongo, a professor of Racism, Law, and Injustice at Howard University.
Like abortion rights, the Supreme Court has historically protected affirmative action. In 2003, the court ruled in Grutter v. Bollinger that race can be a factor in college admissions as long as it is not the sole factor. The precedent in Grutter was reaffirmed in 2016 when the court ruled 4-3 in Fisher v. University of Texas at Austin (UT) that the college’s use of affirmative action was constitutional.
Despite this, the composition of the court has changed with Justices Kennedy and Ginsburg, who ruled to protect affirmative action in Fisher, being succeeded by conservative justices. Justice Scalia, who died before he could vote in Fisher, was succeeded by Neil Gorsuch, who also upholds a conservative judicial philosophy. Even with the recent swearing-in of Ketanji Brown Jackson, the Supreme Court holds a 6-3 conservative majority.
“It is unlikely that the conservative justices will vote to affirm affirmative action as a generally acceptable policy,” said Joseph Caleb, civil rights attorney and co-founder of the law firm, CalebAndonian.
There has been rising opposition to the use of race in the admission process. According to Caleb, opponents of affirmative action have argued that it is a form of reverse racism instead of a tool to achieve diversity in higher education. Organizations like the Students for Fair Admissions have upheld the notion of affirmative enabling reverse racism, specifically arguing that it puts Asian American students at a disadvantage.
This assertion is not the case at many state schools, including UMD. Asian-American students account for 17 percent of the student body at Maryland’s flagship campus in College Park despite only comprising 7 percent of the state’s population. The opposite is true for African Americans, who are disproportionately underrepresented at UMD, accounting for 12 percent of its student body despite comprising 31 percent of Maryland’s population.
Even with affirmative action policies in place, African-American students continue to be underrepresented in predominantly-White Maryland schools, with the imbalance likely to increase if the Supreme Court outlaws the practice.
Some states have taken measures to restrict affirmative action despite the Supreme Court’s protection of the policy.
In 1996, Proposition 209 was approved in California, which prohibits considering race in employment and public education. This proposition hindered African American enrollment in selective schools, with the enrollment rate among Black students declining by 44 percent at the University of California, Los Angeles, and 23 percent at the University of California, Berkeley by 23 percent from 1999 to 2006.
“There may very well be a decline in African Americans at highly selective colleges if affirmative action is overturned, as seen with the decline in the African American acceptance rate in California after the passage of Proposition 209,” said BaNikongo.
While campus diversity could be threatened by the potential proscription of affirmative action, admission officers contend that other means such as increased recruitment to high schools and sending out mailers to diverse neighborhoods can still suffice colleges’ diversity goals.