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What you need to know before the Supreme Court rules on the future of affirmative action

Students gathered in front of the John Harvard statue in Harvard Yard to rally for Affirmative Action as the Supreme Court heard arguments on Oct. 31, 2022.Carlin Stiehl for The Boston Globe

The Supreme Court is expected to rule on the future of affirmative action in the college admissions process in the coming weeks, a decision that experts say could reverberate far beyond academia.

Affirmative action has been discussed and argued over for decades, in and out of court, but now the highest court will clarify if selective colleges and universities can continue considering race as one of many factors during the admissions process. Here is a look at some of the most commonly raised questions related to affirmative action.

Let’s start with basics.

What exactly is affirmative action and when did it start?

The phrase affirmative action entered the public sphere when President John F. Kennedy issued an executive order in 1961 that said government contractors would “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” The goal was to explicitly state the government’s commitment to equal opportunity for people regardless of things such as race or religion.

The American Bar Association said in 2020 that Kennedy’s policy acknowledged that “centuries-old racism innately restricted the economic, political, and educational opportunities for African Americans and other minority groups.” Affirmative action was meant to “disrupt an otherwise uneven playing field,” the ABA said, which prompted selective colleges to adopt policies to expand access to disadvantaged and underrepresented students.


The Supreme Court heard its first challenge to university affirmative action programs in 1978 when Allan Bakke, a white man, was denied admission to the University of California Davis’s medical school. The deciding vote in the Bakke case was cast by Justice Lewis Powell, who agreed with UC Davis’s argument it had a compelling interest in the educational benefits of a diverse student body. However, he took issue with the medical school’s use of a quota program to achieve diversity. Powell instead endorsed Harvard University’s race-conscious admissions approach that put applicants through a rigorous, holistic review that considers many factors such as geographic location, race, and family income but did not have a specific quota for underrepresented students.


The Supreme Court has reaffirmed the legality of race-conscious or holistic admissions several times in the decades since the Bakke case.

So why the new lawsuit?

The case currently before the Supreme Court stems from lawsuits filed by the nonprofit Students for Fair Admissions against Harvard and the University of North Carolina at Chapel Hill. SFFA alleged that Harvard’s admissions practices illegally discriminated against Asian American applicants, and that the UNC-Chapel Hill admissions process disadvantaged Asian Americans and white applicants. Conservative activist Edward Blum started the group in 2014 with the mission to prove that considering one’s race or ethnicity violates the US Constitution. Blum’s critics take issue with his approach of identifying policies that he views as problematic and then finding clients to make his case.

The US District Court in Boston ruled in 2019 in favor of Harvard, saying that the university’s limited consideration of race does not violate civil rights law. Two judges from the First Circuit Court of Appeals upheld the decision a year later. SFFA then petitioned the Supreme Court to hear the Harvard and UNC cases. Oral arguments took place last fall, during which conservative justices expressed skepticism about affirmative action in college admissions.

Why do Blum’s supporters take issue with affirmative action in the admissions process?

Students for Fair Admissions argues that considering one’s race as a factor in the college admissions process violates the Equal Protection Clause under the 14th Amendment. Blum believes race should neither help nor hurt one’s application. Opponents of affirmative action believe that individuals should be reviewed or considered on their merits alone, and race should not play a factor. Many affirmative action opponents hold the view that we live in a world where systemic racism no longer exists and therefore practices that advantage certain racial groups are unnecessary. Nine states have already banned affirmative action in admissions practices at public universities.


What do supporters of affirmative action have to say?

Supporters of affirmative action point to persistent systemic racism embedded in the US educational system as one reason why the practice of considering race in the college admissions process is crucial to ensuring people of disadvantaged backgrounds get a fair shot. Without affirmative action, research shows that elite colleges would enroll fewer Black, Hispanic, Native American, and multicultural students. The prospect of less diverse student bodies raises concerns for education reformers because these selective colleges educate many future business, civic, and political leaders.

Higher education experts note top colleges provide social mobility to first-generation and low-income students, another reason they believe diversity should be pursued. Affirmative action supporters also say campuses should reflect American society’s broader diversity, and that diversity is key for campuses preparing students to enter a world where they’ll interact with people of all backgrounds.

What is the Supreme Court expected to do?

Legal experts largely expect the conservative majority on the Supreme Court to reverse decades of precedent by ending affirmative action in the college admissions process following last year’s decision to overturn the right to abortion. Conservative justices also expressed skepticism of the need for affirmative action in college admissions in oral arguments last fall. SFFA called on the Supreme Court to overturn Grutter v. Bollinger, a 2003 decision that held that the University of Michigan Law School could consider race as one part of its admission process to achieve campus diversity.


Which colleges use affirmative action in the admissions process?

Dozens of highly selective colleges that admit a small percentage of total applicants (including Harvard and UNC-Chapel Hill) use affirmative action to ensure they are enrolling a diverse group of qualified students.

Won’t colleges find another way to ensure campus diversity?

Experts and researchers say that there is currently no race-neutral admissions process that achieves diversity as well as affirmative action. In California and Michigan, which both ended affirmative action in public college admissions years ago, top universities have struggled to recruit Black, Hispanic, Native American, and multicultural students through race-neutral recruitment strategies. UCLA, UC Berkeley, and the University of Michigan, which are among the most selective institutions in those states, reported drastic declines of underrepresented students of color immediately following the bans. While the numbers have improved in recent years, the numbers still lag behind the diversity of K-12 schools in those states.

Separately, Berkeley economics professor David Card, at the request of Harvard’s lawyers, studied how the institution’s student population would change if it stopped considering race as part of the admissions process. Card found that, based on data from the class of 2019, the share of Black students in the first admitted class after a ban would drop from 14 percent to 6 percent while Hispanic student enrollment would fall from 14 percent to 9 percent.


Additionally, new research from Georgetown University found that selective colleges will be unlikely to achieve a level of diversity that mirrors society if affirmative action ends. Some opponents of affirmative action would like to see colleges consider applicants’ socioeconomic status rather than race, but researchers have found that approach would also result in fewer underrepresented students enrolled at top schools. Some supporters of affirmative action say socioeconomic status should be considered in addition to race during the admissions process.

How could the decision impact people and companies outside of college campuses?

Education reformers fear the end of affirmative action will lead to fewer professionals of color in an array of industries from medicine to politics. The consequences of a decision to end preferences based on race could also jeopardize a number of programs outside of higher education, including requirements that shares of government contracts go to minority-owned groups and race-based hiring practices and diversity groups within the private sector.

Hilary Burns can be reached at hilary.burns@globe.com. Follow her on Twitter @Hilarysburns.