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legal insights

by Dana Scott

Affirmative action and the Supreme Court

The latest challenge and possible effects

ince the 1954 ruling in Brown v. Board of Education (347 US 483), it is well known that segregation is unlawful in schools in the United States. What is not clear, however, is what efforts K-12 schools may pursue in admission processes to create more diverse schools in their districts.

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 (551 US 701) that because the district’s high school admission program was targeted at reaching demogiraphic goals rather than educational benefits, it was unconstitutional. This ruling did not make all race-conscious admissions programs in K-12 schools illegal, but it did create uncertainty as to what is permitted when districts want to consider race in admission processes in K-12 schools. The Court has not issued any other opinions that provide additional guidance on the topic of K-12 diversity programs.

Although the Court’s decisions on affirmative action methods at the university level do not apply directly to the K-12 context, they do offer insight on the Court’s general stance on the consideration of race in education admissions. The newest precedent on the topic may come from two cases brought by Students for Fair Admissions (SFFA), a nonprofit membership organization arguing before the Supreme Court last November that any consideration of race in college admission processes, including affirmative action, is unlawful. The outcome of these cases will likely impact K-12 education by providing further insight about any consideration of race in admission practices. The cases will also impact the options students see for themselves in their education and career paths, and consequently, the classes and activities they may decide to pursue.

A sign that reads Admissions office
The history of affirmative action and the Supreme Court

Affirmative action in the United States is the active effort to improve opportunities for members of groups that have been subjected to discrimination. In practice, affirmative action is often seen in government policies and programs and is perhaps most widely recognized in many public colleges and university admission processes.

Four college admissions cases provide the framework for the legal precedent colleges and universities must follow when considering an applicant’s race during the admissions process. The 1978 case Regents of University of California v. Bakke (438 US 265) held that University of California, Davis School of Medicine could not use a quota system for admission of “qualified minorities,” but it could consider the race of applicants as one of the factors for admission. The 2003 cases Gratz v. Bollinger (529 US 244) and Grutter v. Bollinger (539 US 306) relate to admissions practices at the University of Michigan. In Gratz, the Court held that a point-based admission system where underrepresented minorities received points because of their race was unconstitutional because race was not considered on an individual basis. in Grutter, however, the Court found that the University of Michigan law school’s use of an individualized process to consider applicants and its inclusion of race among the many factors considered for admission was constitutional. Most recently, in the 2016 Fisher v. University of Texas (570 US 297) decision, the Court upheld Bakke and Grutter, confirming that affirmative action in its current application is constitutional.

SFFA cases against Harvard and University of North Carolina

SFFA argued that the Court should overturn Grutter and find that affirmative action is unconstitutional and a violation of Title VI. In the Harvard case, SFFA asks the Court to overrule Grutter and make it illegal for colleges to consider race in admissions. SFFA also asks the Court to consider if, by using race-based practices in admissions, Harvard is violating Title VI of the Civil Rights Act, which bars entities receiving federal funds from discriminating based on race. The case against the University of North Carolina (UNC) also asks the Court to overturn Grutter, arguing that the use of a policy that considers race violates the Fourteenth Amendment’s Equal Protection Clause due to UNC’s public university status.

Both cases brought by SFFA focus on the impact that the colleges’ admissions processes have on Asian American students, arguing that both schools use race at every stage of the admission process, with Harvard giving preference to African American and Hispanic applicants and UNC giving preference to African American, Hispanic and Native American applicants. Neither school gives preference to Asian Americans as an underrepresented group, and this consideration of race for some but not all students, SFFA argues, leads to discrimination.

During oral arguments, the questions posed by the Court indicated that the conservative majority was inclined to overrule Grutter as precedent. The conservative justices focused on the need for an end point to racial considerations in admissions because precedent suggested that this type of admissions process cannot be permitted forever. They asked what diversity is, how someone knows when it is achieved and what benefits it brings to education. The liberal justices asked questions that suggested upholding Grutter was the best path forward. They focused on how race impacts student experience and the need for colleges to maintain diversity to ensure a diverse workforce in various professions.

Affirmative action in California and observed impacts

The Court’s decision should have no effect on college admission processes in California. In 1996, voters approved Proposition 209, which created Section 31 of the California Constitution’s Declaration of Rights and, along with outlawing discrimination, prohibited the grant of preferential treatment to a person based on their race, sex, color, ethnicity or national origin in public employment, public contracts and public education. In other words, affirmative action became illegal in California. A 2020 effort, Proposition 16, attempted to eliminate this section from the Constitution but failed 57 percent to 42 percent.

California’s experience after affirmative action was outlawed foreshadows what the impacts may be nationally if the Supreme Court overrules Grutter and makes affirmative action unconstitutional. Studies show that when colleges are unable to consider race as a factor in admission processes, diversity on campuses decreases, and although other measures to enroll underrepresented minorities do have a positive effect, they do not work to the same degree as affirmative action. Research has also found a decrease in underrepresented minority admissions leads to a decline in the number of underrepresented minorities attaining undergraduate and graduate degrees.

These two cases will have both direct and indirect effects on K-12 education throughout the country. Most directly, school districts may change or eliminate their diversity efforts in admissions for fear of legal challenge. Indirectly, students in every state may adapt their post-graduation plans by changing the colleges they apply to, changing their career goals, or opting out of applying for college because the options available before no longer seem feasible. They may decide not to challenge themselves with AP or honors classes because they do not see the purpose if the college admission process seems insurmountable. The effects will likely be wide reaching and add new complications for schools to adapt to.

Dana Scott is CSBA’s Associate General Counsel.
Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.