Kentuckian Andrew Brennen was a sophomore at UNC when he first joined the Affirmative Action debate. 

“At the time the university did not have that many Black students. I remember the year after I started they had admitted less than 100 Black men in a class total of 4500. When we heard about a group called Students for Fair Admissions that was suing the university, we kind of assumed it was to correct some of this lack of diversity, and so we were surprised when we, in fact, learned they were suing the university for being too diverse,” Brennen said.

Affirmative Action is “the practice or policy of favoring individuals belonging to groups known to have been discriminated against previously.” Affirmative Action in college admissions is a policy used to increase acceptance rates from underrepresented populations, such as African Americans, Latinos and women.

Affirmative Action is sweeping the front pages and breaking headlines because of two cases the Supreme Court is currently hearing. Students for Fair Admissions (SFFA) vs. Harvard and SFFA vs. University of North Carolina (UNC) are both cases where SFFA, an anti-Affirmative Action group, claim that the admissions processes at these universities are discriminating against White and Asian American applicants.

As the cases began to take shape, Brennen joined a group of UNC students who filed with the federal court in North Carolina to intervene as parties on the side of the university. They testified using their own personal experiences as minority students on campus.

Brennen was also present when the case went before the Supreme Court in October. 

“These are questions and issues that I have been thinking about that were deeply personal to me. I wanted to kind of jump in there and be part of the argument,” Brennen said, reflecting on the difficulty of having to watch the oral arguments from the sidelines.

Affirmative Action is complicated because it was initially intended to counteract discrimination. It was first coined as a policy aimed at increasing diversity by President John F. Kennedy, and at that time it was used in the context of labor unions. President Kennedy established the President’s Committee on Equal Employment Opportunity to combat the issue. He encouraged employers to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”

The Civil Rights Movement spurred on the adoption of the term in the context of higher education. In fact, less than a month after the assassination of Dr. King, Harvard’s Dean of Admissions committed the university to accepting more black applicants. 

The SFFA cases are not the first time Affirmative Action has been brought to the Supreme Court. In the case Regents of the University of California v. Bakke in 1978, the Supreme Court ruled that universities are allowed to use race as a factor in the admissions process, but that holding quotas for the number of minority applicants they would accept is unconstitutional. 

In 2003 the court heard two cases, Gratz v. Bollinger and Grutter v. Bollinger. In these instances, the court again ruled in favor of Affirmative Action, but decided it was only constitutional if schools used race as a factor on a case-by-case basis. This is the modern precedent still used today.

All of these cases, are similar in that White or Asian American students are suing schools that they were denied acceptance at, on the basis that these schools were discriminating against them due to their ethnicity and favoring students of color instead. But if you look at why Affirmative Action was instituted into admissions policies at selective colleges, you begin to see the nuances of the argument.

When elite universities such as Harvard were founded, they were exclusively for white upper-class men. Schools are trying to use Affirmative Action as a way to mitigate the effects of their discriminatory pasts on applicants today.

“This is a debate about where and how elitism and a history of racism and sexism wrongly kept a whole bunch of qualified people out and what colleges and universities are allowed to do to try to correct that,” said civil rights attorney and President of the Leadership Conference on Civil and Human Rights Maya Wiley, during a round table about the case hearings with the New York Times.

Affirmative Action is a policy mainly used at elite and highly selective universities, but you can see its impact locally too. The University of Louisville’s statement on Affirmative Action and Equal Employments Opportunities quotes, “the university seeks to promote campus diversity by enrolling and employing a larger number of minorities and women where these groups have historically been and continue to be under-represented within the university.” This further highlights the initial purpose of Affirmative Action policies as correctional tools for diversity on campus.

One of the SFFA’s many arguments against Affirmative Action is that it violates the Equal Protection Clause of the 14th Amendment. The clause states “nor shall any State deny to any person within its jurisdiction the equal protection of the laws.” The SFFA argues that treating applicants differently based on their skin color is not equal protection under the law.

Supporters of Affirmative Action argue that it is a fair system. 

“There is a fundamental mistake made too often in this conversation about Black and Latino students in these admissions programs, which is that somehow they’re getting in despite their qualifications. They’re getting in under these programs because of their qualifications, because they can do the work,” Maya Wiley said.

“It’s just unrealistic to say we cannot consider race because race influences everything that is happening in every aspect of society,” said the Executive Administrator for Louisville Metro’s Office for Women Gretchen Hunt.

Given the racial reckoning the country has been going through since 2020, some believe that there seems to be a disconnect in the timing of the cases. 

“What is very interesting is that if you look at the corporate sector and even more so more recently, the nonprofit sector and government, diversity equity inclusion is a whole strategy and program right now, so it really feels strange that universities would be going in the opposite direction,” Hunt said.

Brennen describes a reality without race considerations in college admissions. 

“I wrote my essay to UNC about my experience growing up as a gay Black man in Kentucky, and part of what the petitioners are advocating for is a world where college admissions officers would not be able to take things like my essay into account because it it touches on the issue of race. It would prevent me from being able to talk about elements of my identity that are very important to me,” Brennen said. 

For people on both sides of the argument, the future of Affirmative Action is a pressing concern.

Edward Blum is the creator of the SFFA and has challenged Affirmative Action in the Supreme Court seven times prior to the Harvard and UNC cases.

“I think this is just the beginning of the restoration of really the founding principles of our Civil Rights Movement,” Blum said, looking forward to a potential future without Affirmative Action.

On the other hand, Brennen argues that Affirmative Action is essential to diversity, not only in higher education but all institutions. 

“Without it, what’s really at risk is our society and our democracy,” Brennen said.

 The Supreme Court must now ask itself, what is truly fair? Is it fair to consider race in applications in an attempt to equalize opportunities for underprivileged students? Or is this unfair to other deserving applicants?  Race in America is a fraught issue, and it is no different with the Affirmative Action debate.