Making Their Arguments Against Affirmative Action

Published on
May 16, 2022

(Excerpts from Inside Higher Ed)

  • Thirty- four briefs were filed, most of them last week, urging the U.S. Supreme Court to reverse its past support for affirmative action in college admissions.
  • The briefs could be cited in the Supreme Court’s decision, expected next year, on the admissions systems at Harvard University and the University of North Carolina at Chapel Hill.
  • Within some academic circles, it is simply accepted that Harvard and UNC should win the cases. The briefs filed last week may not win over those who believe that. But they do demonstrate the breadth of the forces opposed to affirmative action.
  • The members of Congress begin their brief by denouncing the Grutter v. Bollinger decision, which in 2003 upheld the right of the University of Michigan law school to consider race in admissions.“ “Grutter is a constitutional anomaly,” the brief says. “Decisions under the Fourteenth Amendment firmly establish that equal protection of the law includes the right to equal treatment regardless of one’s race. Except for race-conscious college admissions, laws and policies dividing people by race are immediately suspect.”
  • Another political figure submitting a brief was Edwin Meese III, attorney general under President Reagan.
  • Meese’s brief said Grutter “was met with fierce criticism by four justices, and it has not aged well; indeed, Grutter cleared the path for the discrimination of Harvard’s and the University of North Carolina’s Asian American applicants described throughout the petitioner’s brief. Besides these critiques,  Grutter suffers from another deficiency—it makes no attempt to connect its holding to the meaning of the Fourteenth Amendment as understood by the generation that ratified it.
  • The briefs include a number of groups that have long opposed affirmative action as it practiced by colleges and universities.