Latino and Black Students Have the Most To Lose if the Supreme Court Ends Affirmative Action

On Halloween, the Supreme Court began the process of deciding the fate of affirmative action policies. These were signed into law by President John F. Kennedy in 1961 before President Lyndon B. Johnson expanded its scope in 1965 requiring employers to ignore race and national origin in the hiring process.

Kennedy’s original executive order specified that government contractors should “take affirmative action to ensure that applicants are employed, and employees are treated [fairly] during employment, without regard to their race, creed, color, or national origin.”

By the early 1970s, universities across the United States began employing similar initiatives thanks to something called the Harvard Plan, which was developed by then-administrator Walter J. Leonard and was regarded as “one of the country’s earliest and most effective affirmative-action programs, which became a model for other universities around the country,” according to Leonard’s obituary in the Washington Post.

The Supreme Court ultimately ruled against racial or ethnic quotas related to affirmative action in 1978, but universities nationwide were still able to consider race as a deciding factor in the admissions process. Now, the conservative Supreme Court of 2022 is aiming to do away with affirmative action altogether, which would effectively disallow public universities from considering race entirely.

The Court is considering two lawsuits in particular both filed by an anti-affirmative action group called Students for Fair Admissions. SFFA filed lawsuits against both Harvard and the University of North Carolina. According to the lawsuit against Harvard the group claims, “SFFA has members who have applied to Harvard” and “were denied admission to Harvard through a system that employs race and/or ethnicity as a factor.”

SFFA seems to be preying on decades-old stereotypes that affirmative action more or less takes opportunities away from white students to give them to students of color. The term itself has become a dog whistle for those who blame people of color after being rejected at a job or university.

The facts of affirmative action are much more complicated. Despite the Supreme Court’s anti-quota ruling in 1978, there is still a widely-accepted misconception that universities and workplaces need to fill a certain number of “slots” with students and employees of color. This is not and has never been the case.

According to the NAACP Legal Defense Fund, 82 corporations have signed three amicus briefs — based on amicus curiae, which translates to “friend of the court” and allows parties not involved with a court case to voice support for one side of an argument — imploring the Supreme Court to uphold the affirmative action policies of the last four-and-a-half decades.

In total, the corporations who signed the briefs — which include Apple, Google, and American Express — employ more than 5.5 million people worldwide and generate more than $3.2 trillion in yearly revenue. These corporations and businesses insist that a diverse workforce is a net positive for the American economy and the businesses that comprise it. A full list of corporations who signed the amicus briefs can be found in NAACP’s press release.

An excerpt from one of the briefs reads, “Students of all racial backgrounds benefit from diverse university environments … Building a diverse classroom experience is how to turn out the most informed critical thinkers. Classroom diversity is crucial to producing employable, productive, value-adding citizens in business.”

Fox News reports that tensions were high in the courtroom as the justices debated oral arguments for nearly five hours. All parties involved, from the SFFA to the justices themselves, were dragged into heated discussions at one point or another, with some of the exchanges approaching a level of hostility.

Fox News contributor Jonathan Turley said, “Chief Justice Roberts at points appeared to be losing his patience with Harvard’s counsel Seth Waxman due to his combative style in oral argument.” He added, “Waxman spoke over a number of justices who asked questions and did not appear responsive to direct questions from justices.”

At one point, Waxman referred to racial considerations in “highly qualified applicants” and likened their admission to “being… an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player.” Justice Roberts snapped back at Waxman, saying, “We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination.”

Justice Clarence Thomas took a hardline position against affirmative action and, at certain points, seemed to doubt the validity of diversity in education as a positive addition to campus culture. Meanwhile, Justice Ketanji Brown Jackson formally recused herself from the case, having served as a member of Harvard’s Board of Overseers prior to her Supreme Court appointment.

A study conducted on Harvard by three economists named Peter Arcidiacono, Josh Kinsler and Tyler Ransom reveals that 43% of white students fall under the designation of ALDS (athletes, legacy, families of donors, or children of staff). For Black, Latino, and Asian students, the number drops to around 16%.

“Removing preferences for athletes and legacies would significantly alter the racial distribution of admitted students, with the share of white admits falling and all other groups rising or remaining unchanged,” the study admitted.

Harvard spent five years fighting a 2014 lawsuit also filed by Students for Fair Admissions, which alleged that Harvard was discriminating against Asian-American students by holding them to higher admissions standards than students of other races.

Harvard recently released admissions statistics for its Class of 2026; Asian-American students made up 27.9% of admissions, while African American and Latino students comprised 15.2% and 12.6% of the student body, respectively. Students of color represent 60% of Harvard’s Class of 2026 while nearly 70% of ALDS applicants continue to be white.

The Supreme Court is expected to rule on both of SFFA’s lawsuits at the end of their current term in late June or early July at the latest.