The Supreme Court, Educational Affirmative Action, and Its Unfortunate Likely Demise

Kirit Minhas is a junior in the College, where he majors in English Literature and minors in Journalism and French. He is currently a Blog Writer for the Georgetown University Undergraduate Law Review.

On March 6, 1961, President John F. Kennedy signed Executive Order 10925 which directed federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.”[1] This measure introduced the institution known in the United States today as affirmative action, which is used today to protect and empower diverse hiring practices within education and career opportunities that are supported by the federal government. Three years later, President Lyndon B. Johnson signed the Civil Rights Act of 1964 into law, which prohibited the discrimination of employees by companies larger than fifteen employees. In 1965, he also issued Executive Order 11246, requiring all government contractors and subcontractors to take affirmative action to create more job opportunities for minorities.[2]

While not explicitly laid out in the executive orders, affirmative action quickly assumed a pivotal role at institutions of higher education in the United States. Racial quotas began to take shape as universities worked to recruit minority students to their campuses; this controversial practice led to litigation from white applicants who felt they were being unfairly discriminated against. One such landmark case, the first in a long series of challenges to the practice of affirmative action at the Supreme Court, was Regents of the University of California v. Bakke. In this case, a white student named Allan Bakke brought a case against the University of California (UC) system after he was twice denied admission to UC Davis’ medical school, despite having higher test scores than admitted minority students.[3] After the California Supreme Court ruled in his favor, the UC system appealed to the Supreme Court. 

UC Davis School of Medicine utilized a racial quota system, reserving 16 out of 100 spots for minority students each year. The central question in this case was whether this system violated the Civil Rights Act of 1964 and the Fourteenth Amendment’s equal protection clause in denying Bakke admission. The ruling ultimately set the precedent for the affirmative action practices we see today. Authored by Justice F. Powell Jr., the opinions upheld the principle of affirmative action but overturned UC Davis’s specific racial quota practice. In his opinion, Justice Powell writes that “the diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element.”[4] This is the essential holding of the ruling—race may be used in what is now known as holistic admissions, but only as one of several broad factors determining diversity on a college campus. Altogether, the opinions written by Powell upheld the right of the university system to use holistic race-based admissions practices while striking down the specificity of the quota system as unconstitutional.

In several challenges since then, affirmative action has been upheld repeatedly, albeit in a rather lukewarm fashion by the nation’s highest court. In 2003, Justice Sandra Day O’Connor wrote for the majority in a narrowly divided 5-4 court in the case of Grutter v. Bollinger. The case, which involved a highly qualified applicant being rejected from University of Michigan Law School, ultimately yielded an opinion that upheld the constitutionality of affirmative action while further narrowing its usage.[5] O’Connor wrote in her opinion that race must be treated on an individual basis for each applicant, and further limited the scope of affirmative action by arguing that “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”[6] Affirmative action continued to be challenged at the Supreme Court again in the cases Fisher v. University of Texas (2013) and Fisher v. University of Texas (2016), which is commonly referred to as Fisher II. The justices essentially deferred a decision in 2013 by sending the case back to the lower court. But in Fisher II, the justices upheld that race-based affirmative action was protected by the 14th Amendment, leading to virtually no change.

With President Trump appointing three conservative justices to the Supreme Court, the makeup of the court has changed drastically in the years since affirmative action was challenged.  Within this current conservative supermajority, the conservative justices have judicial records of being hostile toward affirmative action. Thus, a pair of cases against the University of Carolina and Harvard University seem to be the final nails in the coffin of the practice. 

It is important to reflect on the impacts that a ban on affirmative action can have on educational institutions and their diversity. Affirmative action bans have been upheld on statewide levels via referendums in states like California and Michigan. Research conducted by David Mickey-Pabello as part of the UCLA Civil Rights Project shows that these bans have not exactly yielded the results that they promised. Racial and ethnic diversity has decreased by 26% for Black students and 19% for Hispanic students between 1996, the year when California banned affirmative action, and 2012. The SAT scores of those admitted students have also declined, on average, in both the math and verbal sections.[7] 

Overall, these bans have negatively impacted diversity and academic excellence, while also producing other negative implications. These include decreasing applications from underrepresented minority students and lower numbers of underrepresented minorities entering the pipeline for graduate and professional studies. This further diminishes the diversity of the faculty at universities, perpetuating a negative feedback loop for underrepresented minorities in higher education.[8] While the history of affirmative action in the United States in our judicial system is complicated, it is important to realize the real-life impacts that its ban could hold on its future in many aspects of our society. The “compelling interest” that Justice Powell wrote of in 1978 has not dissipated in the years since he penned his opinion, nor has it in the 20 years since Justice O’Connor wrote her majority opinion in Grutter v. Bollinger

[1] Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 8, 1961).

[2] Exec. Order No. 11,246, 30 Fed. Reg. 12319 (Sep. 28, 1965).

[3] Regents of the University of California v. Bakke, Oyez,

[4] Regents of University of California v. Bakke, 438 U.S. 265, 315 (1978).

[5] Grutter v. Bollinger, 538 U.S. 306, 310 (2003), Retrieved from Oyez,

[6] Id.

[7] David Mickey-Pabello, Scholarly findings on affirmative action bans, UCLA Civil Rights Project (Oct. 26, 2020),

[8] Id.


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