Affirmative Action Critics Look to Kill These Biden Policies

The U.S. Supreme Court began hearing oral arguments on Monday in two cases that will determine the future of affirmative action in college admissions decisions.

Amicus briefs filed in support of the argument that affirmative action practices should be outlawed reveal which relevant Biden administration positions and policies are being targeted by critics.

The affirmative action cases involve Harvard and the University of North Carolina (UNC), and both were filed by the group Students for Fair Admissions (SFFA). The nonprofit describes itself as a group whose members "believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional."

The Harvard lawsuit alleges that the school discriminates against Asian American applicants by making them less likely to be admitted, compared with prospective white, Black or Hispanic students with similar qualifications. The UNC lawsuit alleges that considering race in its admissions process leads the school to discriminate since it does not need to make such considerations to ensure that its student body is diverse.

SFFA accuses UNC of violating the 14th Amendment's equal protection clause through affirmative action. The Supreme Court has reviewed and upheld affirmative action several times. In the 2003 case Grutter v. Bollinger, the Court ruled that the University of Michigan Law School's use of racial preferences in student admissions did not violate the Equal Protection Clause.

Luke Charles Harris, a co-founder of the African American Policy Forum and associate professor of political science at Vassar, told Newsweek that "affirmative action is not only valid but is a moral imperative."

"A system of racial exclusion sanctioned by the Constitution was treated as normal, and tiers of citizenship were a constitutional creation with respect to the status of people of color and whites in our society," Harris said. "And affirmative action simply represents a set of anti-preference measures pushing back against the policies of exclusion."

Sumi Cho, the director of strategic initiatives for the African American Policy Forum and a former law professor, told Newsweek that "nothing in the Constitution clearly bars racial remedies like affirmative action."

Amicus briefs are filed by people or groups that are not party to an action but have a strong interest in the matter. The goal of such briefs is to influence court decisions.

Nearly 100 such briefs were filed in the two cases from the SFFA now in front of the highest court in the U.S., according to SCOTUSblog, which provided a breakdown of the main arguments from both sides in the filing.

In one brief, a group of former senior U.S. Education Department officials wrote that the Biden administration has been focusing too heavily on race in education.

"While the last several years have seen the rise of 'equity,' 'diversity,' and 'inclusion' campaigns that openly call for considering race even more, the U.S. Constitution and Title VI protect against such discrimination," the brief said.

In addition to contending that affirmative action policies "harm Asian-American students and others, who are unfairly judged by their race rather than by individual merit," a brief from U.S. senators and representatives took issue with a Biden administration executive order announcing a huge equity agenda.

The order, signed on Biden's first day in office, declares that the federal government "should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality."

"Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government," the order states. "Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies...must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity."

But the amicus brief from the senators and representatives cites the equity agenda as one of the reasons that Grutter should be overruled, saying that the case "may have influenced" this and other policies.

Current Biden administration officials, on the other hand, argued in their amicus brief that the Supreme Court should not overrule Grutter. It argued that the decision allowed U.S. residents and lawmakers to "engage in ongoing dialogue about this sensitive and important issue" and stressed that the public has come to rely on the idea that affirmative action is permitted, according to SCOTUSblog.

Kristin Penner, a senior research analyst at the African American Policy Forum, and Cho both warned about the potential harmful ramifications of a Supreme Court ruling against affirmative action, which would affect such things as representation, inclusion and campus safety.

"Affirmative action has made it possible for generations of people of color—poor and working class as well as middle class, the children of domestic workers, educators, laborers and doctors—to begin to break through the unwarranted institutional roadblocks to our participation in all segments of the American workplace for the first time in our nation's history," Penner told Newsweek.

Newsweek reached out to the White House for comment.