The University of North Carolina at Chapel Hill, which has faced mounting criticism over its treatment of Black faculty and students, will soon go to the U.S. Supreme Court to defend its diversity-centric admission policies.

Students for Fair Admissions, a conservative group opposed to affirmative action, first sued UNC-Chapel Hill in 2014. The group argued that UNC’s admission policies, which consider the race of students, disadvantaged white and Asian American applicants.

In October, a federal judge ruled in favor of the public university, writing it “has a genuine and compelling interest in achieving the educational benefits of diversity” and had demonstrated the benefits of its admission policies.

The loss prompted Students for Fair Admissions to appeal to the U.S. Supreme Court, which agreed last week to take up the case, combining it with a similar lawsuit against Harvard University.

“We look forward to defending the University’s holistic admissions process before the U.S. Supreme Court,” UNC-CH spokeswoman Beth Keith said in a statement.

“As the trial court held, our process is consistent with long-standing Supreme Court precedent and allows for an evaluation of each student in a deliberate and thoughtful way.”

What is affirmative action?

Affirmative action, a loaded phrase at the best of times, dates back to the Reconstruction era, says William Spriggs, a professor of economics at Howard University in Washington, DC.

“Most schools in the North openly sought Black students. They were the most outspoken against slavery,” Spriggs says. “Starting around the end of the 1870s and through the early 1920s, you will see this swelling of Black graduates from all of the elite schools.”

Within 50 years, however, the country’s attitude changed. As elite private universities opened their doors to public school students (instead of just prep school students), they also created admission policies specifically designed to keep certain people out. The rise of eugenics and scientific racism in the 1920s led universities to discriminate against Black students, Jewish students, and other minorities, says Spriggs.

“You had these eugenicists who were convinced they could document racial inferiority,” says Spriggs. “Standardized testing was implemented initially to document inferiority. The tests were scaled and designed so [colleges] could [recruit] the ‘right’ people out of the public schools.

“The elite schools did not want to offend Southerners, and Black students disappeared.”

Affirmative action as we know it today emerged during the civil rights movement of the 1960s, as businesses and schools faced pressure from the federal government to integrate. An executive order from President John F. Kennedy established the concept of taking “affirmative action” to recruit people of color to schools and jobs.

“The horrors of the Holocaust and of the Nazi movement made the eugenics movement try their best to disappear,” Spriggs says. “By the end of the 1950s, because of Dr. King and the Montgomery bus boycott, and the victory Howard Law School had ending public segregation, many of the elite schools felt like, ‘Well, we can’t keep all Blacks out.’”

In 1964, the Civil Rights Act was passed, prohibiting employment discrimination. Later, in 1969, the Nixon administration successfully implemented the “Philadelphia Plan,” which required government contractors in the state to hire minority workers and set “goals and timetables” for diversifying their workforce.

Some states, businesses, and universities followed suit, but not without facing plenty of backlash. Almost as soon as colleges began considering race in admissions, white men and women who were denied entrance began suing on the basis of “reverse discrimination.”

In 1978, the Supreme Court decided a case that set the precedent for affirmative action for decades. Alan Bakke, who is white, sued the University of California medical school after he was twice denied admission.

The court’s decision in Regents of the University of California v. Bakke was mixed. Although it outlawed racial quotas (the system used by the University of California), it ruled that other, more narrow considerations of race were lawful. That position was upheld in Grutter v. Bollinger (2003), when the court ruled that race could be considered as one of several factors in an admissions decision.

Black students at UNC-Chapel Hill

Despite the Supreme Court’s rulings, Black students remain massively underrepresented in colleges and universities across the country. Today, many arguments against affirmative action revert to a 1920s ideology, says Spriggs.

“Most of the arguments now still rest on a belief that the presence of Black students means you have admitted inferior students,” Spriggs says. “They clearly presume that it is not possible that Black students are equal. Their argument is ‘You must have put your thumb on the scale in order to get this result.’”

At UNC-CH, Black students currently make up 8.7 percent of the total student population. Most students come from Wake County, where the population of Black high school graduates is more than triple that number at about 31.7 percent. Many other students come from Mecklenburg County, where about 41.4 percent of graduates are Black, and Guilford County, where about 37.8 percent are Black.

The history of segregation at UNC-CH has left a lasting mark on the student body. The first Black students were accepted to the university in 1951, when a court order forced the law school to admit them. The school’s population of Black students grew until the 1980s, when it plateaued at around 7 or 8 percent. Growth of the Black student body resumed in 1994, peaking a decade later at 10 percent. Since the 2003-04 academic year, however, Black enrollment has dropped.

The challenge to UNC-CH’s affirmative action policies is “troublesome,” says Jarrah Faye, president of the university’s NAACP.

“It just lets me know that even the mere thought of Black and brown students having the chance to be a part of the higher education system bothers people,” she told the INDY. “At what point do we take a stand and say, ‘This is a direct challenge to Black students’? [Students] who are probably first generation, who don’t come from traditional backgrounds, but are trying to get an education, to get a chance to be something.”

Faye says she appreciates UNC’s defense of its admission policies, but it feels “performative.”

“Here you are trying to support and increase diversity in your student population, but once you get that diversity, you’re not doing anything to ensure that population is protected. You’re not doing anything to make them feel safe,” Faye says.

“The same way they’re fighting for this policy in the Supreme Court, [UNC-CH] should fight for policies that support diversity within the school system.”

What can we expect next?

The Supreme Court will likely hear the case during its next term, which starts in October. The court currently has a solid conservative majority, which is unlikely to change even if President Joe Biden appoints another liberal justice following Justice Stephen Breyer’s retirement.

Spriggs is not optimistic about the outcome of the case, he says.

“The fact that the courts want to treat this as an ahistorical phenomenon, that isn’t what went on,” he says. “It’s like we are going to, by hook or by crook, find our way back to 1950. Whatever it takes. And that would be really unfortunate.” 

Where the U.S. Supreme Court Justices Stand on Affirmative Action

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