As court battles wage over affirmative action, academics with legal expertise see other actual and potential points of litigation that could have a major impact on diversity, equity and inclusion in higher education.
“The smart money is that affirmative action’s days are numbered,” said Justin Driver, the Harry N. Wyatt Professor of Law and the Ludwig and Wolf Teaching Scholar at the University of Chicago Law School.
The death blow he predicts could be delivered by the U.S. Supreme Court in any number of pending cases.
A group called Students for Fair Admissions last year sued Harvard University and, earlier this year, the University of North Carolina at Chapel Hill over affirmative action policies they allege unfairly discriminate against Asian American students.
The Trump administration has supported the Harvard suit and last year began investigating Yale University’s affirmative action practices. Schools with affirmative action policies operate under the most recent Supreme Court rulings that they may consider race and ethnicity among other factors in determining college acceptance.
But with President Trump’s appointment of Neal Gorsuch in 2017 and Brett Kavanaugh in 2018 – two justices who have shifted the high court’s balance to a conservative majority – race-conscious admissions decisions may be declared unconstitutional.
“Affirmative action has been administered last rites many times,” Driver recalled, citing the landmark California v. Bakke ruling in 1978 that allowed affirmative action but declared racial quotas unconstitutional, and the Gratz v. Bollinger case in 2003 in which the University of Michigan’s undergraduate admissions policy of affirmative action was ruled unconstitutional.
