The Supreme Court will hear a case Wednesday that could determine whether America’s colleges can legally consider an applicant’s race as one of many admissions factors — a practice known as affirmative action.
The concept of affirmative action dates back to the American civil-rights movement of the 1960s. Seeking to expand opportunities for minorities, then-President John F. Kennedy issued an executive order that established the Equal Employment Opportunity Commission and used the term “affirmative action.”
The order mandated that government contractors “
take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, colour, or national origin.”
Essentially, Kennedy was saying contractors should go out of their way to ensure they didn’t discriminate against prospective or current employees.
Subsequently, in 1964, Kennedy signed the Civil Rights Act outlawing discrimination based on race, colour, religion, sex, or national origin.
Against this backdrop, America’s colleges spent the 1960s and 1970s recruiting minority students — taking affirmative action to try to make their campuses more diverse.
This practice was first challenged in a 1978 Supreme Court case called Regents of the University of California v. Bakke that ultimately embraced affirmative action as long as colleges didn’t use racial “quotas.”
That opinion pointed to Harvard’s admissions program as one that appropriately considered race as one factor in admissions. From the opinion (emphasis added):
In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. […]
In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favour just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer […]
In Harvard College admissions, the Committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. … But that awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that, in choosing among thousands of applicants who are not only “admissible” academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students.
This week, the Supreme Court will take up affirmative action again in a case that focuses on the University of Texas at Austin, which automatically admits the top 10% of students from every class in the state. Students who don’t get in through the so-called Top-10 plan can still gain admission, and the university considers a number of factors, including extracurricular activities and race.
As SCOTUSblog’s Lyle Denniston noted: “[T]he stakes might turn out to be huge: it could be that the result would go so far as to make it unconstitutional for public universities and colleges to take race into account in any way in choosing their entering classes.”
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