On Thursday, June 29, the U.S. Supreme Court, in a 6-3 ruling, struck down the long-standing policy of affirmative action in college admissions on the grounds it violates the 14th Amendment’s Equal Protection Clause.
91ֿ Professor Christopher Banks, Ph.D., J.D., says the high court already had tipped its hand that the court was “positioned to jettison” the policy, so the ruling was not surprising.
Affirmative action in college admissions, firmly in place since 1978, allowed higher education institutions to consider race as an advantage factor in college admissions. The idea behind affirmative action is to give weight to applicants from diverse racial backgrounds who may not have had the same access to resources and educational opportunities as wealthier students.
Banks said the underlying ideal behind the policy came out of a 1978 legal challenge in Regents of the University of California v. Bakke which held that promoting diversity in education is a good thing. In more recent rulings since Bakke, the court has reaffirmed it as a controlling precedent. But the long-standing precedent for authorizing college admission decisions by considering a person’s race was reversed in today’s decision, he said.
Taking a ‘Neutral’ Approach
In this sense, the court undercut a key Bakke rationale, Banks explained, “Especially recognizing past discrimination against certain groups of people of color, it’s a good thing to promote diversity in the classroom – that’s been the touchstone.”
The two cases decided today by the high court were brought by the anti-affirmative action group Students for Fair Admissions, which sued both Harvard University and the University of North Carolina, alleging their admissions policies discriminated against Asian Americans by giving preference to Black, Hispanic and Native American applicants.
Challenges have been brought before using the same legal claims, Banks said, but this is the first time a majority of justices on the Supreme Court, who share the more inflexible “colorblind” conservative interpretation of the law, would be willing to disregard past controlling affirmative action precedents.
Banks said Chief Justice John Roberts has long been a proponent of race-neutral policies and has said in previous cases that, “The way to eliminate race in decision-making is to eliminate race.”
“It’s basically a colorblind-neutral approach,” Banks said. “The difference is now that we have more justices who actually agree with the position and have shown a willingness to change precedent.”
A few states already have outlawed affirmative action policies, including Michigan, where the University of Michigan saw Black undergraduate admissions drop by 50 percent, according to a report by the Urban Institute, a non-profit research organization.
However, Banks said he believes university administrators who want to promote diversity among their student populations will find other paths to inclusion for students.
Ironically, Banks noted that perhaps one encouraging signal comes from the majority opinion, penned by Chief Justice Roberts, which said: “At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
The court was not of one mind in its decision-making, Banks noted. Writing for the dissenters, Associate Supreme Court Justice Sonia Sotomayor concluded, “At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.”
In terms of today’s ruling’s immediate impact on colleges and universities, Banks puts his faith in university administrators. (Read 91ֿ President Todd Diacon's letter on today's affirmative action ruling.)
“If they’re forward-thinking administrators, who anticipated the court’s ruling, they probably already have some contingency plan in the works to make it go. So, I don’t know what the actual impact will be, but I do think it shows the willingness of this court to revisit long-standing precedents and reverse them,” Banks said.
Constitutional Flux
As a political science professor who specializes in law and political theory, Banks said the idea of “constitutional flux,” – when the court’s new membership coalesces into a majority and changes the existing precedent it disagrees with in a rapid fashion – is not new, and has happened in prior eras when the balance of the court justices tipped toward one political leaning. He noted the Warren Court of 1954 to 1969 when Justice Earl Warren and others promoted a strong progressive agenda.
“Basically, they’re doing exactly what they can with their power and that’s exactly what the Warren court did with its power to promote liberal ideas. And this court is promoting conservative ideas because they have the power,” Banks observed.
Banks said he expects to continue seeing conservative-leaning groups bring lawsuits to get precedents they disagree with on legal and public policy grounds overturned. He noted another case for which a decision is expected by the end of the week, which seeks to promote a more conservative agenda, including a wedding web page designer who stated that a Colorado state law that prohibits her from refusing to work for same-sex couples is a violation of her First Amendment right to free speech.
“Now we have a full-frontal assault on all of the Warren court precedents,” Banks said.
91ֿ to Establish Pre-Law Center
Banks, who has been at 91ֿ since 2006, is expected to be named the interim director of 91ֿ’s new Pre-Law Center.
On Wednesday, 91ֿ’s Board of Trustees approved the establishment of the center within the College of Arts and Sciences, effective fall 2023. The Pre-Law Center will provide an administrative structure to facilitate the various pre-law advising, research and cocurricular activities that take place in the college and across the university.
91ֿ currently provides a preparatory curriculum in pre-law through a pre-law minor and a paralegal studies major, minor and certificate. The College of Arts and Sciences, the College of Public Health, the College of Communication and Information, and the Ambassador Crawford College of Business and Entrepreneurship all are engaged in a 3+3 agreement with law schools across Northeast Ohio, giving students the opportunity to graduate more quickly.
The new Pre-Law Center will provide clarity and a clear institutional purpose and strategic direction by centralizing the various existing advising, career exploration and cocurricular activities.