Supreme Court revisits arguments on affirmative action in colleges


Joseph Zuloaga '23

Harvard and the University of North Carolina at Chapel Hill are at the center of this new affirmative action case that is being taken up by the Supreme Court.

Angela Jia '25, National and World News Editor

On Oct. 31, the Supreme Court heard nearly five hours of oral arguments in two affirmative action cases. Affirmative action is the policy of considering race as a factor among many in determining holistic admissions to colleges. 

The defendant universities at the center of those cases are Harvard University and University of North Carolina–Chapel Hill. 

The plaintiff challenging both universities over their affirmative action policies is Student for Fair Admissions, an organization headed by conservative legal strategist Edward Blum. SFFA represents a group of anonymous Asian American students who allege they’ve been discriminated against by Harvard and UNC’s affirmative action policies.

The 6-3 conservative Court appears open to overturning affirmative action, indicated by the critical questioning from the Court’s conservative Justices. 

Historically, affirmative action has been held as constitutional in courts even amidst the legal challenges. In 2016, the Supreme Court upheld affirmative action for the University of Texas, saying that educational diversity is a compelling reason for schools to consider race as one factor in admissions. However, a previous case established that while considering race as a factor is constitutional, enacting racial quotas is not. 

This is particularly relevant given that one of SFFA’s arguments is that Harvard’s population of Asian students has remained at around 20 percent even though the number of Asian applicants has risen. Seth Waxman, one of Harvard’s lawyers, pushed back against that argument by saying lower courts have found that Harvard does not discriminate against Asian American applicants. 

The Court’s conservative line of questioning mainly ran under two themes: first, whether there can be other means of achieving diversity without taking into account race, and second, how long it will be till universities stop making such distinctions. 

For example, some conservative Justices suggested providing financial aid or outreach programs for low-income or first-generation students. However, lower courts agree with the universities that although such programs have been used, there is no “race neutral” program that will currently be as effective as affirmative action in order to create a diverse student body.

Justice Clarence Thomas said, “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.” 

Meanwhile, newly sworn-in Justice Ketanji Brown Jackson points out how it’s odd that admission officers could consider factors such as parental status and disability but not race. 

Melissa Nagar, Riordan’s college counselor, observed, “In general I think it’s important to consider that all colleges have different needs… and without consideration of aspects like race and ethnicity they are unable to meet those goals.”

The main argument for Harvard and UNC-Chapel Hill hoping to preserve affirmative action is that it increases diversity in schools, which allows students to gain more cultured views by interacting with students of different racial groups. Without affirmative action, proponents of the law argue, the population of Blacks and Hispanics would plummet at elite universities. 

“In many ways even though it is challenging for some, I think affirmative action is important to provide accessibility of higher education to underserved populations,” Nagar continued.

One of Harvard’s lawyers argued that many factors contribute to the university’s holistic admissions. According to the New York Times, Seth P. Waxman said, “Race for some highly qualified applicants can be the determinative factor, just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip.” 

Nagar echoes something similar. “Overall, it’s kind of hard to say since the consideration of race is just one factor among many in holistic admissions.”

Chris Fern, a Social Studies teacher and Dean of Academics, noted “America’s ‘land of opportunity’ master narrative attempts to hide the fact that… the status quo of wealth and power [is] concentrated in the hands of a few.”

“The middle class is meant to look up in awe at these supposed self made individuals at the top while simultaneously looking down at the lower class for lacking desire and grit to pull themselves up by the bootstraps.”

“…Affirmative action is an attempt to rectify some of these past injustices by leveling the playing field for opportunity. Until efforts are allowed to rectify these past injustices, people in these underserved groups will have to work several times harder to even have a hope of achieving the American Dream.”

Harvard’s lawyer Seth P. Waxman also argues that Harvard does not discriminate against Asian American students, although does not contest SFFA’s argument that on average Asians received lower ratings for character and personal qualities compared to other racial groups. 

Jamil Flores ’23, who’s applying to University of San Francisco, said “I’ve seen many cases throughout my years here where people worried if they’ve put enough information down on their applications for colleges. I believe people should…take… into consideration their own merits… when undergoing this process. We are not only run on the basis of our skin color, but by our background and where we come from as people to better explain our reasons for applying to that school.” 

Outside the Supreme Court, the majority of protestors rallied in support of affirmative actions. A sizable chunk of them were Asian American students in support of the policy. 

However, overall, America is not supportive of affirmative action – according to Pew Research from 2022, 74 percent of Americans do not believe that race should be a factor in admissions. At the same time, a similar percentage of Americans also want more racial diversity in schools.