Supreme Court to hear affirmative action case

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In this drawing by courtroom artist Dana Verkouteren, the Supreme Court hears arguments on the opening day of its new term in Washington on Monday, Oct. 3, 2022. From left to right are Justice Amy Coney Barrett, Justice Neil Gorsuch, Justice Sonia Sotomayor, Justice Clarence Thomas, Chief Justice John Roberts, Justice Samuel Alito, Justice Elena Kagan, Justice Brett Kavanaugh and Justice Ketanji Brown Jackson. The Supreme Court will hear two affirmative action cases this session. (AP Photo/Dana Verkouteren)

Today the U.S. Supreme Court will hear two cases concerning public universities using race as a factor in admissions.

These cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, are both challenging race-conscious admissions programs, saying that they violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment.

If the Court were to rule in favor of the plaintiff, Students for Fair Admissions, Inc., it would overrule Grutter v. Bollinger, a case settled in 2003, which upheld the University of Michigan Law School’s affirmative action policies after a white applicant claimed she was unfairly rejected based on her race.

This prior ruling supported the university’s claims that race-conscious policies promote student diversity. This is the same position the University of North Carolina and Harvard will argue before the Supreme Court in the coming days.

BYU political science professor Chris Krewson explained that since the 1978 case Regents of the University of California v. Bakke, conflicts over affirmative action have been a recurring concern of the Supreme Court.

According to Krewson, legal application of the equal protection clause holds that there are some classifications that are subject to strict scrutiny under the law, because any laws concerning these subjects are considered “inherently suspect.” One of these suspect classifications is race, which Krewson said is the reason that affirmative action cases are so highly disputed.

He said that in many recent cases concerning this topic, the Court has upheld the use of race-conscious university programs while clarifying that they do not intend on allowing such programs indefinitely.

In the case of Grutter v. Bollinger, Justice Sandra Day O’Connor wrote in the majority opinion, “Race-conscious admissions policies must be limited in time … The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

While the 25 year mark that O’Connor established is approaching, Krewson acknowledged that there still may be reason to keep these affirmative action policies.

“I get the viewpoint that our society might be in a place in which there are certain disadvantaged groups,” he said, “and the way to fulfill the equal protection of the law is to allow the federal government and states to have race-conscious policies.”

Political science student Alahna Duplantis agreed that there are prejudices that these programs can solve.

“We might not even be aware of it, but there are systemic factors and barriers that stop certain groups of people from being given the same amount of consideration or privileges,” she said.

Another student, Isabella Rosario, said she sees how making decisions based on a person’s race can be dangerous. She said minorities are often more likely to be admitted to college, including at BYU.

“I’m a minority and I’m grateful for the opportunity to be here, but I think it’s also unfair to discredit all the people that are white, born and raised in Utah, who should have the equal opportunity to attend this institution,” she said.

Her opinion echoes a sentiment that Krewson also mentioned, a statement by Chief Justice John Roberts in another case involving affirmative action.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts said.

When asked to what extent race is factored into college admissions, BYU’s University Communications department responded with a statement taken from BYU’s policy on “Fostering an Enriched Environment”:

“‘The mission of Brigham Young University—founded, supported, and guided by The Church of Jesus Christ of Latter-day Saints — is to assist individuals in their quest for perfection and eternal life. That assistance should provide a period of intensive learning in a stimulating setting where a commitment to excellence is expected and the full realization of human potential is pursued.’

To this end, the university seeks qualified students of various talents and backgrounds, including geographic, educational, cultural, ethnic, and racial, who relate together in such a manner that they are ‘no more strangers and foreigners, but fellow citizens with the saints, and of the household of God’ (Ephesians 2:19). It is the university’s judgment that providing educational opportunities for a mix of students who share values based on the gospel of Jesus Christ and who come from a variety of backgrounds and experiences is an important educational asset to BYU.”

The two cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, come at the beginning of the nine month Supreme Court session, which lasts every year from October to June. 

This is Judge Ketanji Brown Jackson’s first session in the Supreme Court and Krewson said that her contributions to the Court’s oral arguments have already been significant.

“She raised some interesting questions using sort of conservative approaches,” he said.

Krewson cited her defense of race-conscious policies based on the 14th Amendment, where she reasoned that the motivation of the Equal Protection clause was to ameliorate discrimination based on race, not to be race neutral.

“She’s raising these originalist arguments to support more liberal outcomes and I find that really interesting,” he said. “I wonder, to an extent, if she’ll be able to force her colleagues to grapple with that question.”

Krewson said the current Court is unique from previous modern Courts, because there is not a “real, moderate, median justice.” He said that the most moderate justices currently serving, which he named as Roberts and Brett Kavanaugh, still lean conservative, making the Court as a whole more conservative than it has previously been.

Student Alvaro Molina has also noticed that this Court is distinctive, but not for reasons he supports.

“I think it was really messed up that they overturned things that they all said was precedent,” he said, alluding to their ruling on Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade. “It’s generally looked down upon for judges to overturn things that are precedent.”

This is why Molina believes that overturning Grutter v. Bollinger would not be the correct decision for the Court to make.

“It would be a display of partisanship,” he said.

Although Molina does not believe that affirmative action should be done away with, he does support the sentiment that underlines every court decision on race-based admission policies: “Maybe in a world where things are more equitable,” he said.

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