Affirmative action at risk as conservative Supreme Court hears challenges

By Samar Marwan

October 31, 2022

Stacked with conservative justices, the Supreme Court is currently considering a counter to the decades-long affirmative action precedents, which could dramatically shift admissions to America’s elite academic institutions. Today, two highly consequential cases were presented, involving the University of North Carolina and Harvard University and their admissions programs, both of which take race into account in an effort to foster educational diversity.


The Supreme Court initially ruled on affirmative action in 1978. The landmark case helped address the gap within the nation’s education system and promoted diversity, especially for Black and Hispanic students who were underrepresented in college enrollment. Since the push for inclusivity in academic institutions, diversity has lent caliber to universities and has become a huge selling point for prospective staff and students.

Affirmative action sets out to address racial inequality in higher education. Opponents, however, argue that the rule meant to boost diversity, in fact, excludes white and Asian Americans. Edward Blum, an anti-affirmative movement activist and founder of Students for Fair Admissions, has been after the legality of race-based admissions for decades. Blum’s appeal to the court states that such policies discriminate against white and Asian American applicants at UNC and Asian Americans at Harvard.

On Monday, the court heard nearly five hours of oral arguments, opening with the UNC case in which all nine judges participated. Justice Clarence Thomas questioned the university’s claim that there is a compelling interest in a school’s diverse enrollment. “I may be tone deaf when it comes to all these other things that happen on campus, about feeling good and all that,” Thomas said. “What benefits academically are there to your definition of the diversity that you’re asserting?”


Before the Harvard suit began, Justice Ketanji Brown Jackson recused herself, as she is not only a graduate of both Harvard and Harvard Law, but also until recently served on Harvard’s Board of Overseers. While hearing Harvard’s case, Chief Justice John Roberts questioned the university’s lawyers about how race was a “very close to zero” factor while deciding on admissions. “So there’s only a little racial discrimination in the case?” Roberts asked.

While the universities argue that their admissions process is in line with the court’s precedents, they point out that race is simply one of many factors considered during the admissions process, without any quotas. Lawyers also affirmed that repealing the law would only hurt underrepresented groups and further expand educational inequality.

Nonetheless, with a 6-3 conservative majority, this court is expected to reverse its landmark precedent. Chief Justice Roberts, Justice Thomas, and Justice Samuel Alito all ruled in favor of challenges to affirmative action programs and are expected to rule in favor of repeal in these cases. The ruling is not expected until the end of June 2023.