Through affirmative action, minorities were given opportunities that they may have otherwise not had – in employment and education. But since its enactment, initiating by John F. Kennedy and put into law by Lyndon B. Johnson, some states have opted out.
In 1996, in the state of California, for example, Proposition 209 banned all forms of affirmative action “in the operation of public employment, public education, or public contracting.” And as a result, the schools felt the pain of trying to find innovative ways of diversifying – and then falling short.
The University of California says it has spent more than $500 million since 2004 to widen the diversity of its student body through various outreach programs. The freshman class at UC Berkeley had 6,931 students in the 2021-2022 school year. Of that, there were only 258 Blacks and 27 Native Americans. At UCLA, Black and Native American enrollment was reduced in half after the affirmative action prohibition.
The University of Michigan (U-M) saw similar numbers after the state prohibited affirmative action. In December, 2006, the Michigan Civil Rights Initiative (MCRI), also called Proposal 2,was passed. The new law banned considering race, color, sex or religion in college admissions, in addition to employment. Essentially, this prevented affirmative action in admissions.
At its main campus in Ann Harbor, in 2021, Black student enrollment at U-M was at a mere four percent. And this was after the university established a dedicated admissions office in Detroit, attempting to draw in Black applicants.
“Despite persistent, vigorous and varied efforts to increase student body racial and ethnic diversity by race-neutral means,” the brief from Michigan stated. “The admission and enrollment of underrepresented minority students have fallen precipitously in many of U-M’s schools and colleges.”
For most schools, the affirmative action restrictions has had little effect on the the student body demographics. The problem generally occurs at the more prestigious schools or schools that are relatively harder to get into. It’s in these ivy league schools where the underrepresented groups have dramatically decreased.
Attorneys for the schools contend that attaining racial diversity at highly selective universities is almost unattainable without affirmative action. According to Yale Law School professor Justin Driver, the numbers in California and Michigan show the consequences of prohibiting affirmative action in admissions.
In addition to California and Michigan, there are seven other states that prohibit affirmative action when selecting applicants at public universities: Washington, Florida, Nebraska, Arizona, New Hampshire, Oklahoma, and Idaho. Six out of the nine states are red states, although in the 2020 presidential election, Biden won Arizona.
Students for Fair Admissions (SFFA) is an anti-affirmative action group that was established in 2014 that have been rigorously fighting against affirmative action. It is comprised of more the 20,000 members who advocate for unbiased college admissions and believe that affirmative action in that selection process is unconstitutional. And it’s the SFFA that have been raising this awareness, while filing lawsuits against universities for what they believe to be illegally discriminating against non-minorities.
It recently filed a lawsuit against the University of Texas (Austin), stating that “applicants, who are White, were denied the opportunity to compete for admission to UT-Austin on equal footing with other applicants on the basis of race or ethnicity because of UT-Austin’s discriminatory admissions policies.”
And they weren’t finished in Texas. The SFFA also filed a lawsuit against the University of North Carolina for selecting a freshman class that was “race-conscious.” SFFA is accusing the university for favoring underrepresenting minorities. Furthermore, the SFFA is filing a lawsuit against Harvard for allegedly discriminating against Asian-Americans.
But if states are choosing to exercise affirmative action that are outside of the nine states that prohibit affirmative action, how is the SFFA filing a lawsuits places like Texas and North Carolina, where it’s permissible?
While the SFFA is claiming that these universities are in violation of Title VI of the Civil Rights Act of 1964, in which racial discrimination is prohibited – the universities are invoking the Supreme Court decision Grutter v. Bollinger, which validates the use of affirmative action. But the key thing in using the Grutter v. Bollinger argument is that race cannot be solely used as a determining factor. And it’s through these nuances that the courts have to examine.
The SFFA has shown some resilience after the courts ruled against it in the U.S. District Court and the U.S. Court of Appeals in 2019 and 2020. The SFFA didn’t give up there. It filed another appeal, and the case has finally reached the highest court in January. The Supreme Court agreed to hear SFFA’s case against the universities in October, which may alter the course of matriculation of minorities at sought-after schools, for better or for worse.
