Affirmative action under threat as high court hears UNC case

Supreme Court to hear two cases involving University of North Carolina and Harvard University, the nation's oldest public and private universities, respectively

CHAPEL HILL, N.C. (AP) — Once a bastion of segregation, the University of North Carolina now takes account of race to make up for its sordid history and to increase the number of Black students and other underrepresented minorities on campus.

Its affirmative action program, using race among many factors to build a diverse student body, is similar to plans in place at other selective public and private institutions.

But a Supreme Court that has twice blessed race-conscious college admissions programs in the past 19 years now seems poised to restrict their use or outlaw them altogether.

Students walk through the quad outside the student union at the University of North Carolina at Chapel Hill on Monday, Oct. 24, 2022. (AP Photo/Hannah Schoenbaum)

The case, following the overturning of the nearly 50-year precedent of Roe v. Wade in June, offers another test of whether the court now dominated by conservatives will move the nation’s policies to the right on another of its most contentious cultural issues.

The court is hearing two cases Monday, involving UNC and Harvard, the nation’s oldest public and private universities, respectively.

The challengers to the universities’ programs have lost at every step as lower courts have rejected their claims that the schools discriminate against white and Asian American applicants.

But Students for Fair Representation, the creation of conservative activist Ed Blum, has always pointed toward the nation’s highest court, more conservative now that former President Donald Trump’s three nominees are among the nine justices, as the best forum to roll back more than 40 years of court rulings that allow race to be one factor among many in admissions.

North Carolina’s flagship university in Chapel Hill is a curious place to make that case.

The first Black students didn’t arrive until 1951, and then only under court order. Into the 1980s, students reported they were subjected to racial slurs and astonishing displays of insensitivity, including being asked to do laundry by a white classmate, according to an account by historian David Cecelski that is included in court documents.

Even now, U.S. District Judge Loretta Biggs noted in her 2021 decision upholding the university’s program, underrepresented minorities win admission to UNC at lower rates than do white and Asian American applicants and “minority students at the University still report being confronted with racial epithets, as well as feeling isolated, ostracized, stereotyped and viewed as tokens in a number of University spaces.”

Defending its program, North Carolina wrote in its main brief to the Supreme Court that the school “continues to have much work to do.”

On a recent, brilliant fall day in Chapel Hill, students talked about what they see as the benefits and drawbacks of affirmative action in college admissions.

Christina Huang, an 18-year-old freshman from West Milford, New Jersey, who is co-director of UNC for Affirmative Action, said diversity on campus enriches the learning environment for all students, even outside the classroom.

“I think there’s a negative connotation of affirmative action and this idea that it’s a quota and it’s hurting Asian Americans,” said Huang, a first-generation college student who is studying political science.

“But culture plays such a big role, especially on UNC’s campus, because you walk around and there’s culture everywhere. There’s people dressed up in traditional clothes, fashion shows, people dancing to their different types of music, even the foods we eat — it’s so meaningful. You’d lose so much if we were not to make sure we have that diversity.”

Students now picnic under the billowing trees in McCorkle Place where the Confederate statue Silent Sam stood for more than 100 years until protesters toppled it in 2018.

Joy Jiang, a 19-year-old sophomore from Harrisburg, North Carolina, and co-director of the affirmative action group, said recent racial tensions on campus that she described as a backlash after the statue came down, have scared away some students of color from vocalizing their support for affirmative action.

Jacob James, 20, of Robersonville, North Carolina, recognized the value of diversity. “Diversity on college campuses is good, but it shouldn’t come at the expense of fairness,” said James, the chairman of UNC College Republicans. Affirmative action, he said, “unfairly disadvantages some individuals over other individuals based on race.”

A student walks by the Old Well at the University of North Carolina at Chapel Hill, a rotunda and campus landmark at the southern end of McCorkle Place, on Monday, Oct. 24, 2022. (AP Photo/Hannah Schoenbaum)

James’ comment meshes with the main point made by Blum’s group, that the Constitution forbids any consideration of race. Students for Fair Admission said it draws support from the seminal case of Brown v. Board of Education, the 1954 decision that paved the way for the desegregation of the nation’s public schools.

The group told the justices that Brown rejected many of the arguments UNC is making. “It argues that racial classifications make everyone better off. It warns that universities cannot discard race quite yet. And it contends that the legality of its practices should be decided by North Carolinians, not this Court. The segregationists agreed,” according to the group’s final Supreme Court brief.

Students for Fair Representation also makes repeated use of the June decision to overturn Roe v. Wade’s constitutional protection for abortion to bolster its arguments that the court should jettison its affirmative action precedents.

The abortion decision in Dobbs v. Jackson Women’s Health Organization strongly suggests the court would be willing to impose an “all-out ban” on considering race in college admissions, said Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education.

“The implications extend well beyond UNC and Harvard. It may very well result in a different outcome than what we have seen in the Bakke case, the Grutter case in 2003, the Fisher cases,” Granberry Russell said, citing the court’s earlier college admissions cases.

Blum, who has worked for years to rid college admissions of racial considerations, also was behind the ultimately losing lawsuit on behalf of Abigail Fisher, a white woman who claimed discrimination explained her rejection by the University of Texas.

That case was decided only six years ago, but the makeup of the court has changed significantly since then, with the addition of the three Trump appointees and Justice Ketanji Brown Jackson, the court’s first Black woman.

Jackson is sitting out the Harvard case because she was on an advisory board until recently. But she is taking part in the North Carolina case, which strongly suggests the court would use that case if it ends up making a major pronouncement on affirmative action.

Every U.S. college and university the justices attended, save one, is urging the court to preserve race-conscious admissions.

Four justices attended law school at Harvard, and two were undergraduates there. Yale, Princeton, Columbia, Notre Dame and Holy Cross also have joined briefs in defense of Harvard’s and UNC’s admissions plans.

Club leaders at the University of North Carolina at Chapel Hill interact with students outside the student union in a quad known at “The Pit” on Monday, Oct. 24, 2022. (AP Photo/Hannah Schoenbaum)

Only Justice Amy Coney Barrett’s undergraduate alma mater, Rhodes College, in Memphis, Tennessee, is not involved in the cases.

Nine states already prohibit any consideration of race in admissions to public colleges and universities: Arizona, California, Florida, Georgia, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.

In California, the same electorate that gave President Joe Biden a 5-million-vote margin over Trump in 2020 handily rejected a proposal to revive affirmative action.

Public opinion on the topic varies depending on how the question is asked. A Gallup Poll from 2021 found 62% of Americans in favor of affirmative action programs for racial minorities. But in a Pew Research Center survey in March, 74% of Americans, including majorities of Black and Latino respondents, said race and ethnicity should not factor into college admissions.

A decision in the affirmative action cases is not expected before late spring.

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