On October 31, 2022, the Supreme Court heard five hours of oral arguments on the Affirmative Action policy implemented by the Johnson admiration. The following cases were presented: Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. Justice Ketanji Brown Jackson, the court’s first African American woman to be a Supreme Court justice, argued in favor of affirmative action for UNC, however, recused herself from the Harvard case because she previously served on their board of overseers. The U.S. District Court in Boston and the U.S. District Court for the Middle District of North Carolina had ruled in favor of the schools’ use of affirmative action.

“Affirmative action is very beneficial, especially as someone who comes from a family of immigrants. I know how hard it is to catch up and learn what it is to be in America, go to school here, and apply to universities in America. If two people are in this situation and have very similar stats, when you look at race, ethnicity, immigration status or if they’re first generation, you can see which student had to work harder to get to where they are,” Emily Cuba, one of the presidents of Latinas in Action, stated.

Affirmative action, as defined by Cornell Law School is “a set of procedures designed to; eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.” Affirmative action has been implemented in colleges and universities since 1965, when it was first proposed. Since its introduction, the policy has been ruled on and used as a precedent. Cases such as Regents of the University of California v. Bakke and Gratz v. Bollinger have been tried regarding favoritism and have upheld affirmative action policies despite some backlash. However, many states have opposed the policy and refuse to uphold it, such as Arizona, California, Idaho, Michigan, Nebraska, Oklahoma, Washington, as well as Florida itself in 2001.

The lawyers representing the anti-affirmative dispute, such as Patrick Strawbridge and Cameron Norris, are doing so on the basis of Title VI of the 1964 Civil Rights Act and the Equal Protection Act. Title IV claims that  “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” It is being used in the case against Harvard, which, despite its private status, still receives public federal funds. The Equal Protections Act, of the 14th amendment, applies this same act to state colleges; UNC in this case. Both sides cite the Brown v. Board of Education case and SFFA also claims the discrimination of Asian-Americans, since these colleges are known to limit the amount of Asians at their schools because their demographic could become a majority, according to The Washington Post. They are also known to prioritize the acceptance of international Asians over those living in the United States.

“I feel as though the process of admissions in that particular situation should be left up to luck, however, I understand the fact that minorities should be admitted more frequently,” Sarah Thapa, the president of the Asian Student Alliance, said.

However, on the defendant’s side, Seth Waxman claims that the admissions process at times comes down to one characteristic or factor to determine if an applicant will be accepted, and this is dependent on what the college is in need of. Sometimes this determining factor is being able to play a specific instrument, and sometimes, it is race. UNC students, alumni, and staff have all claimed that the implementation of affirmative action is not only enriching, but it is necessary. UNC’s history is deeply rooted in racial discrimination, as it was the first public college to open during a time in which discrimination in the admissions process was an widely accepted practice. Even with the use of the policy, their diversity is low in representation compared to the population of minorities in the state.

“Affirmative Action is beneficial with what it tries to do since there are a lot of barriers put in place for minorities…They try to compensate for that and try to bring up minority representation at higher levels of education,” Justin Ricketts, the president of Black Student Union, explained.

The SFFA is a conservative organization, of which Edward Blum, a legal activist, is the president. Their counsel for this case consists of members of the Consovoy McCarthy law firm, many of which were former clerks to Justice Clarence Thomas. SFFA claims that Affirmative Action discriminates against Asian-Americans, however, many Asians disagree with this notion. Asian-Americans have been fighting against the use of a subjective standard to gauge traits like likability, courage and kindness to further stereotype against Asians as well as being held to higher standards due to their race. This standard, however, is not necessarily correlated with affirmative action policies.

“Where [Affirmative Action] fails is when it takes your race and decides that to mean you’ve experienced all the downfalls that people of that race have experienced; it doesn’t factor in the fact that many minorities these days don’t experience the same discrimination as others in that same group, due to advantages such as money or alumni status…they’re generalizing, and that creates a lot of the controversy people talk about. Affirmative Action is a good thing if it is done in a more thorough process than simply checking a box on a form,” Ricketts claimed.

The cases are likely to be decided in June of 2023, and with a majority of conservative justices on the bench, it is possible that the precedent of Gratz v. Bollinger will be overturned and Affirmative Action will not be upheld. Many wonder that if race conscious admissions are being targeted, what of the children of alumni or those with lower socioeconomic statuses? There is a higher acceptance rate among legacy students than of Asian American students and students with lower household incomes. The main benefactors of affirmative action are also white women, as they are in the female minority, yet lack racial injustice. Justice Ketaji Brown Jackson questions why colleges “consider factors like whether applicants were parents, veterans or disabled — but not if they were members of racial minorities.” After the oral arguments of October 31, justices will most likely hold a private meeting and make a decision in the coming weeks after. This entails writing a majority opinion which will be released in 2023, affecting those who graduate 2024 and later.