On January 24, 2022, the Supreme Court of the United States announced that it will hear two cases, against Harvard College and the University of North Carolina, which “rais[e] serious doubts about the future of affirmative action in higher education.” The plaintiff in both cases, Students for Fair Admissions, Inc. (“SFFA”), is a non-profit organization devoted to eradicating affirmative action programs nationwide. Described as the “culmination of a years-long strategy by conservative activists,” these cases represent the first affirmative action challenges to be argued before the Court’s new conservative majority, where they “pose the gravest threats yet” to over forty years of judicial precedent approving the use of race as a non-determinative factor in undergraduate admissions.
The United States is divided over how and whether public schools may legally consider race when seeking equity in access to public education. Though the Supreme Court declared de jure racial segregation in public schools unconstitutional under the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education, the United States’ public school system today remains “largely separate and unequal.” Students of color “are more racially and socioeconomically isolated today than at any time since data have been available,” and “nonwhite” school districts receive $23 billion less in funding than white school districts that serve the same number of students. Racially concentrated minority schools have lower levels of academic achievement, inferior resources, higher teacher turnover rates, and less rigorous curricular opportunities. Moreover, racially isolated schools severely limit interaction between students from different backgrounds.
In attempting to remedy these disparities—which stem from the United States’ slow redress of slavery, segregation, and discrimination—the United States has grappled with whether institutions should explicitly consider students’ race in their integration and diversity policies. In Brown, the Court analyzed racial discrimination and segregation’s social effects on Black students and prohibited state practices that reinforced the inferiority of historically oppressed populations, thereby explicitly addressing remedy in relation to race. In cases immediately subsequent to Brown, the Court upheld race-conscious desegregation efforts, remedies, and public school policies, affirmatively embedding antisubordination principles into the law.