The Future of Affirmative Action in US Universities: Supreme Court Verdict Looming

Tuition fees, excellent grades and entrance tests: the hurdles to studying at a popular US university are high. If these criteria alone were used, almost all students in the United States would probably be white or Asian Americans. For this reason, universities also take ethnic background into account when allocating places.

This is called Affirmative Action. However, one organization has filed a complaint against the support measures before the highest US court in Washington, the Supreme Court. The verdict against two universities is expected to fall soon, with nationwide consequences.

Affirmative action means something like “active equal rights policy”, one also speaks of “positive discrimination”. Various funding regulations in the USA are aimed at giving minorities better access to universities, but also to state-owned companies and organizations. President John F. Kennedy pushed the 1961 Affirmative Action for the labor market policy to reduce discrimination in government contractors and create more equal opportunities.

Since the civil rights movement at the end of the 1960s, it has also been the practice at many US universities to give preference to applicants who are historically disadvantaged – if they perform similarly to members of the white majority society. Blacks, Hispanics and Indigenous people benefit in particular.

Because in their educational careers, people of color are still structurally disadvantaged, also because they often live in poorer neighborhoods. Schools in the United States are funded through property taxes. In areas with lower tax revenues, there is often a lack of money for school and extracurricular activities. Factors that are decisive for an application to a top university.

Since the Supreme Court ruled in 1978, there has no longer been a fixed quota for minorities at universities. Instead, origin, ethnicity and social background can be factors that are taken into account when applying. It should be about a holistic view of the students.

However, several US states only allow affirmative action at private universities but not at their public universities: Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

Edward Blum is an activist behind Students for Fair Admissions. He is president of the right-wing conservative association and has been campaigning against Affirmative Action for years because the principle is “unfair, unnecessary and unconstitutional”. Rather, the nation’s “original principles of the civil rights movement” should be restored. For him, skin color and ethnicity should not be factors in admission to a course of study.

Attorney Wencong Fa from the conservative Pacific Legal Foundation in California’s capital Sacramento argues in favor of the plaintiffs. The Chinese-born lawyer has submitted a brief to the Supreme Court supporting the abolition of affirmative action.

Affirmative action, critics say, is itself racist. An argument that opponents of funding measures often make is also shared by some students at the University of North Carolina: It is “cynical” to assume that black people only make it to the university because of “outrageous advantages”, according to the student representative of the Republican, Jacob James.

Affirmative action has made universities more diverse in recent decades. But the institutions also emphasize that origin and ethnicity are just one of many criteria in their selection and that all aspects of an application come into play.

The same goes for the private University of San Francisco, which costs $50,000 a year to study. At the law school, more than half of the students come from otherwise underrepresented groups. Rector Susan Freiwald sees a weighty argument for this: “We live in a multi-ethnic democracy and lawyers are very powerful people. That’s why the lawyers have to come from different milieus.”

David Oppenheimer, a law professor at the State University of Berkeley, has a similar view. He pleaded for affirmative action on behalf of two dozen rectors and professors in a Supreme Court brief. He regrets that he is not allowed to apply the principle at his own elite university.

Historian Waldschmidt-Nelson says it is “unfortunately very likely” that the Supreme Court will rule against affirmative action. From the point of view of many other experts, that would not be surprising: since Donald Trump’s presidency, a conservative majority has dominated the US Supreme Court with six to three votes. According to Waldschmidt-Nelson, almost all conservative judges have spoken out against affirmative action in the past. The trend became clear at the oral hearing in October 2022.

In this composition, the court has already passed several judgments that are highly controversial in society. It overturned the nationwide abortion law that had existed since 1973 and was known as the Roe vs. Wade case. Other decisions on gun laws and climate policy also caused controversy.

Should the Supreme Court actually overturn Affirmative Action, according to historian Waldschmidt-Nelson „blatant repercussions on all public and private institutions”.

The expected consequences can be shown using the example of California: In a referendum in 1996, a majority of the population voted in favor of the abolition of affirmative action at state universities. After that sank Halved the number of Black, Indigenous, and Hispanic students at elite colleges like Berkeley and the University of California. Today it is still not back to where it was then.

And this despite the fact that California’s state universities have invested half a billion dollars in other measures to attract underrepresented groups.

Doris Simon, bth, Katharina Wilhelm