The phrase “affirmative action” was first used in the National Labor Relations Act of 1935, or Wagner Act, which codified greater protections of unions. It ordered that employers who had discriminated against employees had to rehire them or make up for the loss through “affirmative action.” 

The concept of affirmative action regarding race showed up in an executive order issued by Franklin Roosevelt in 1941, which responded to complaints by Black Americans that they were contributing to the war effort while simultaneously being discriminated against by Jim Crow segregation laws on US soil. The order created the Fair Employment Practices Committee and forced defense contractors “….to provide for the full and equitable participation of all workers in defense industries, without discrimination… .”

Then, in 1961, John F. Kennedy issued an executive order calling on government contractors 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,” attaching the term to our modern day conception of it. 

Further committees were established and executive orders passed to promote fair employment practices, and alongside them continued a drive to integrate the armed forces and public schools. Affirmative action focused almost exclusively on Black Americans and aimed to remedy past injustices committed against their community, propelling them to success in institutions from which they had long been excluded. To act affirmatively was to make a conscious effort to reverse the status quo.

A 1978 Supreme Court case marked a drastic turning point for affirmative action in higher education, transforming it into the practice we know and argue about today. Allan Bakke was a white applicant denied admission to the University of California, Davis’ medical school, despite having higher test scores and a higher GPA than other admitted candidates. At the time, the school had a system in which it reserved 16 out of 100 spots for minorities, and Bakke sued on the grounds that he had been discriminated against. The case, Regents of the University of California v. Bakke, made it to the Supreme Court, with the justices considering if the racial quota system had violated the 14th Amendment’s Equal Protection Clause, which mandates that individuals in similar circumstances receive equal treatment under the law.

The Court was split 4-4, with Justice Lewis Powell, appointed by Richard Nixon, finding himself as the swing vote. Powell wanted to keep affirmative action intact, but he didn’t like the university’s system of explicitly reserving places for minorities. So he sent one of his clerks, Robert Comfort, to find justification for his position. 

“In Powell’s view, the best result was to preserve affirmative action in some form,” recalled Comfort. “He said, ‘I want to find a middle ground. My client, the country, needs for this to be the result. How do we get there?’”

Comfort dug into the amicus curiae briefs available to him, which are legal briefs submitted by third parties offering their expertise on a case. One stood out—submitted by Harvard, it outlined the practice of promoting “educational diversity” by shaping a student body to include individuals of various backgrounds and talents. James Bierman, a lawyer who signed a different but similar brief that was submitted for an earlier case known as DeFunis v. Odegaard—technically the first Supreme Court dealing with affirmative action, it was declared moot in 1974—discussed the importance of promoting diversity at Harvard Law School. 

“We had to do something deliberately, because of racism in this country,” he said. “You have an applicant pool where the objective numbers for Blacks and whites do not look the same. How do we justify accepting someone with a lower LSAT score?”

By taking language from a 1960 report from the university that alluded to the importance of a diverse student body, he had a justification for affirmative action—the same justification that Powell used when he voted in favor of Bakke, determining that U.C. Davis’ quota system was impermissible but that colleges did have the right to take race into account when making admissions decisions in the name of diversity. This compromise set the precedent that has determined every affirmative action case since. 

Comfort, whose selection of an amicus curiae brief drastically influenced the current state of affirmative action, reflected on Powell’s decision. “It was not the most elegant piece of legal reasoning, but it was the right result,” he said. “Sometimes the right answer is not the intellectually defensible answer. It’s not the lawyerly answer. It’s a compromise. A lawyer isn’t interested in producing the clearest opinion. He wants to produce the best result.”

That approach to produce the best result, which focused on diversity, was a hard pivot from previous reasoning in favor of affirmative action.  

“Powell based his decision on the principle of ‘diversity.’ This was not the original impulse of the civil-rights movement—the presence of African-Americans at the lunch counter wasn’t about enriching the environment of Woolworth’s,” writes Hua Hsu for The New Yorker. “Powell’s compromise changed the terms of affirmative action. Admissions policies could no longer acknowledge the past; they could only advance a more diverse future.”

The wrestling over affirmative action continued after Bakke. In California, Glynn Custred, who had publicly called affirmative action a “reversed Jim Crow,” and Tom Wood, who blamed the practice for his difficulty in finding a professorship, drafted Proposition 209, which banned affirmative action in educational settings. In the 1996 referendum, about 55% of Californians voted in favor of it, establishing a ban that persists today. (Proposition 16, which would have repealed the legislation, was proposed in 2020 and failed by a similar margin with which Prop 209 passed.) 

In 2003 came two Supreme Court cases that relied heavily on the precedent set by Bakke. Grutter v. Bollinger and Gratz v. Bollinger involved two separate lawsuits brought against the University of Michigan, targeting its law school and undergraduate school, respectively. Both were brought by white women who had been denied admission to the university. While the law school adhered to a loosely defined system of race-conscious admissions that used race as one of many factors when evaluating an applicant, the undergraduate school used a point system. Any applicants that passed the threshold of 100 points were admitted, and Black, Latino, Native American, and low-income applicants were automatically assigned 20 points. 

The Court upheld the law school’s holistic evaluation system challenged in Grutter but struck down the undergraduate school’s point-based system challenged in Gratz, enforcing the precedent set in Bakke that while schools are allowed to consider race, strict formulaic methods were impermissible.

Four years later, the Court considered in Parents Involved in Community Schools v. Seattle School District No. 1 if school districts could use race as a “tiebreaker” when assigning students to different campuses, so as to avoid essentially segregating schools. The Court ruled that practices of “racial balancing” were unlawful. 

“The way to stop discrimination on the basis of race,” wrote Justice John Roberts, in the plurality opinion, “is to stop discriminating on the basis of race.”

Another affirmative action case arrived on the steps of the Supreme Court Building six years after that. A lawsuit was being brought against the University of Texas at Austin, which had a policy guaranteeing admission to any Texas students in the top 10% of their graduating class; anyone who didn’t make the cutoff would be evaluated according to various factors, including race. Abigail Fisher, a white student in the top 12% of her class, was denied admission. She sued on the grounds that the school had violated her rights under the Equal Protection Clause.

“There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into U.T., and the only other difference between us was the color of our skin,” she said in a Youtube video. “I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?”

The first case in 2013 was remanded, or cycled back through the lower courts; in 2016, it made it to the Supreme Court again. In Fisher v. University of Texas, the Court ruled in a surprising 4-3 decision against Fisher, upholding the constitutionality of the University of Texas’ admissions process that considered race. 

“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” wrote Justice Robert Kennedy in the majority opinion. 

“Even though U.T. has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though U.T.’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that U.T. has met its heavy burden. This conclusion is remarkable—and remarkably wrong,” countered Justice Samuel Alito in a scathing dissent. “This is affirmative action gone berserk.”

Behind the Fisher lawsuit was a conservative activist and financial adviser named Edward Blum. 

He ran for Congress as a Republican in 1992; blaming his eventual loss on “racial gerrymandering,” he sued the state of Texas for violating the Voting Rights Act of 1965. The case went to the Supreme Court, and Blum and his fellow-plaintiff won, with the Court striking down Texas’s redistricting plan. In 2005, he founded a nonprofit, Project on Fair Representation, that aims to strike down policies meant to address racial inequality. He has brought at least a dozen lawsuits against such policies, four of which have made it to the Supreme Court.

“Blum has shown a talent for pinpointing vulnerabilities in civil-rights law and attacking them in the courts,” writes Hsu. After Blum lost the Fisher case, he didn’t give up on his mission. He needed a different disgruntled student, a different lead. He found his new star in a group of Asian Americans fed up with affirmative action. 

A growing segment of Asian Americans, specifically Chinese Americans, allege that elite universities are making it more difficult for them to gain admission, while they believe it’s easier for Black and Hispanic students to get a spot. They cite the fact that while at the California Institute of Technology, which bases admission strictly on academic merit, the Asian American enrollment grew from 25% to 43% between 1992 and 2013, it slightly decreased at Harvard over the same time period. A 2005 Princeton study found that on average, Asian applicants must score 140 points higher on the SAT to compete with their white counterparts.

Some compare these trends to the discrimination Jewish students experienced at elite universities in the 1930s. When American colleges began to implement standardized testing in the early 20th century, the doors opened for academically gifted students to attend the colleges that had typically been reserved for graduates of New England’s elite boarding schools. Because Jewish students performed well on these tests, their enrollment in top colleges skyrocketed—Harvard’s freshman class was 7% Jewish in 1908 and more than a fifth Jewish in 1922.

Harvard didn’t like this influx in enrollment from a group it deemed undesirable. The president at the time, Abbott Lawrence Lowell, proposed a quota limiting the number of Jewish students, restrictions on the number of scholarships available to Jewish students, and recruiting strategies aimed at high schools in the West, where there were fewer Jewish students. But eventually, he landed on a reworking of the admissions process that would include an evaluation of more subjective qualities of students, effectively changing the way merit was judged.

Harvard began to require that students submit a recommendation letter, personal essays, description of their extracurricular activities, and photograph—sound familiar? Today, holistic review and evaluation of students’ character is a norm in the college admissions process—and it’s exactly where colleges might have the chance to discriminate against Asian students, just as they did to Jewish students a century ago.

“Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” said Kenneth L. Marcus, the former assistant secretary for civil rights at the Department of Education, “so today they often view Asian students as lacking the appropriate character.”

Lowell succeeded in his mission to reign in the number of Jewish students enrolled at Harvard—by 1933, Jewish enrollment was back down to 15%

Journalist Malcolm Gladwell points out that this discrimination could very well be a matter of branding for these elite schools, whose admissions officers are in the “luxury-brand-management business.” “If Harvard had too many Asians, it wouldn’t be Harvard, just as Harvard wouldn’t be Harvard with too many Jews or pansies or parlor pinks or shy types or short people with big ears,” he writes, referencing notes that Harvard admissions officers made on candidates’ files reading “Short with big ears,” “Seems a tad frothy,” and “we just thought he was more of a guy.”

Asian Americans fear that today, top schools are doing the same thing to them that they did to Jewish students. Blum harnessed the energy and manpower behind these concerns to form Students for Fair Admissions (S.F.F.A.), the group that brought the lawsuits against Harvard and the University of North Carolina. They allege that the schools are violating Title VI of the Civil Rights Act—which prohibits any program or activity receiving federal money from practicing discrimination “on the basis of race, color, or national origin”—with practices of “racial balancing, using race as a mechanical plus factor, and not adequately considering race-neutral alternatives.” But unlike previous affirmative action lawsuits, the plaintiffs—in Students for Fair Admissions Inc. v. President and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina, which have been consolidated into one case—have lodged a unique complaint: that these schools intentionally discriminate against Asian applicants.

By giving Asian students lower marks in the very subjective “personal” category of application evaluations, S.F.F.A. claims that Harvard has essentially set a quota that limits the Asian enrollment to about 20%. The group’s complaint quotes a college counselor at a selective New York City high school who relayed a Harvard admissions officer’s feedback that certain Asian students weren’t admitted because “so many” of them “looked just like” each other on paper. Michael Wang, who filed a discrimination complaint against a handful of Ivy League schools that rejected him, relayed what an investigator from the Department of Education told him was a common line used by admissions officers: “Oh, typical Asian student. Wants to become a doctor. Nothing special here.”

In earlier affirmative action cases like Bakke, said Harvard Law School professor Randall Kennedy, “many people thought, ‘Gosh, how rich. White supremacy in the United States…and now all of a sudden white people are the victims of racial oppression?’ But now, even better to have a ‘people of color’ victim. In the court of public opinion, this made a lot of sense, and I think it’s been quite effective.”

Lower courts have all sided with the universities. But a Supreme Court more conservative than the one that presided over Bakke, Grutter, and Fisher could be poised to gut affirmative action in higher education entirely.

Some lament that white conservatives like Blum are using Asian Americans for malicious purposes. Winifred Kao, a lawyer at the Asian Law Caucus, accused Blum of “using Asian-Americans as a wedge, as we’ve often been used, throughout our racial and civil-rights history.” 

“I feel that the Asian-American student population and community is being used as a pawn in a chess game, around limited resources in elite sectors of American society,” said Prudence Carter, a sociologist and the dean of the Graduate School of Education at the University of California.

Originally, affirmative action was literally just a Black and white issue—with Asian Americans in the mix, things are more complicated.

“This alliance, between a white conservative tactician and a comparatively inexperienced base of recently energized Asian-American activists, has complicated the traditional optics of the civil-rights and diversity debates,” writes Hsu.

In reality, the complaints come from a small but vocal minority in the Asian American community. Asian Americans consistently show support for affirmative action—more so even than other racial groups. While majorities of all races say that race shouldn’t be a factor in college admissions, Asians are the least likely to agree: 58% agree, compared to 62% of Blacks, 65% of Hispanics, and 78% of whites. 76% of Asians and 65% of Pacific Islanders support “affirmative action programs designed to help blacks, women, and other minorities get better jobs and education.”

And, as has been done so often in American history, one should resist the urge to reduce the Asian American community to a monolith. A 2016 survey found that while most Chinese respondents opposed affirmative action—a trend that Hsu attributes to the spread of misinformation on the popular Chinese messaging app WeChat—overwhelming majorities of Vietnamese and Filipinos, who are generally underserved communities and can benefit from affirmative action, supported it. And the groups that support the S.F.F.A. lawsuits are comprised largely of foreign-born immigrants, many Chinese. The Asian Americans organizations that support affirmative action tend to be older, having grown up in an age when alliances between civil rights groups fighting for Asian, Black, and Hispanic Americans led to great gains for all groups.

“Affirmative action is part of a larger struggle,” said Kennedy. “The much larger struggle is the struggle against the idea that the United States is a white man’s country. Do people of Asian ancestry benefit from that larger struggle against the notion that America is a white man’s country? Yes, absolutely.”

Should affirmative action in higher education be done away with—the Court will hear arguments in the Harvard/UNC case this October and release its decision in the spring or summer of 2023—it could have a devastating impact on Black and Hispanic students. Black students have long faced significant barriers to entering and finishing college, and historic inequities persist today. Over the past 20 years, the percentage of Black students enrolled in the “101 most selective public colleges and universities” has fallen almost 60%. A 2018 report by the Government Accountability Office found that Black colleges generally had endowments half the size of those at comparable white colleges. 

Even with affirmative action, Asian Americans make up a disproportionate percentage of students at selective colleges, while Black and Latino students are underrepresented. Harvard’s undergraduate population in 2020 was 21.4% Asian, 10.9% Hispanic or Latino, and 8.9% Black. With Asians making up just 5.9% of Americans, Latinos 18.5%, and Blacks 13.4%, Asians are afforded nearly four times their share of spots, while Latinos and Blacks are filling just about half. And the percentage of Black freshmen at elite schools has essentially stagnated since 1980.

A countrywide ban on affirmative action would most likely set Black and Hispanic students back even further; one just has to look to the nine states where bans have already been instituted. After Michigan prohibited the consideration of race in admissions at public colleges and universities in 2006, Black enrollment at the University of Michigan more than halved, decreasing from 9% to around 4% today. California universities saw a similar effect in the years following Proposition 209. Peter Arcidiacono, a Duke economics professor, estimated that if the Supreme Court rules in favor of the S.F.F.A. in these upcoming cases, Black enrollment at U.C. Berkeley will drop by two-thirds. An expert who testified in the Harvard case said that without race conscious admissions, the percentage of Black students at the school would drop from 14% to 6% and the percentage of Latino students from 12% to 9%.

Research conducted to study the effects of California’s Proposition 209 found that by the mid-2010s, the policy “had caused a cumulative decline in the number of early-career [underrepresented minority] Californians earning over $100,000 by at least three percent.” Affirmative action’s new wage benefits for underrepresented minority applicants were also found to have exceeded the small costs for white and Asian applicants, while after the ban, whites and Asians didn’t greatly benefit.

“Maybe the ultimate goal is for Asian-Americans to be the predominant group in the elite schools, as opposed to whites,” said Carter. “I don’t have a problem with that. But I do have a problem with picking on the few numbers of black and brown students in those schools.”

The term affirmative action has been misconstrued and remains incredibly misunderstood. In 2016, OiYan Poon, an assistant professor of higher education at Colorado State University, found that among a group of thirty-six Asian Americans with various views on affirmative action, thirty of them were unable to accurately give the topic a definition. When asked about their preferences for admissions at a place like Harvard, nearly all of them essentially described, according to Poon, “race-conscious holistic review, which is exactly what we have today.”

While 73% of Americans say that colleges and universities shouldn’t consider race or ethnicity when making admissions decisions, a different poll five years earlier found that 63% say affirmative action programs meant to increase the number of black and minority students on college campuses are a “good thing.” Seeing as creating a race-based affirmative action program that doesn’t consider race is all but impossible, these positions are inherently contradictory.

Most Americans also probably don’t consider affirmative action programs that are based on gender instead of race, which tend to benefit men, who are underrepresented in higher education (but in universities focused on STEM, women have the advantage). And in the realm of employment, white women are actually affirmative action’s biggest beneficiaries.

The public’s perception of affirmative action has gotten mangled over the decades—sometimes by well-meaning parents who just want the best for their kids, but often by tenacious activists, like Edward Blum, who try to twist the narrative for their own benefit. 

Opponents of the practice often paint a sympathetic picture of hardworking students whose dreams of attending their dream schools were shattered because of their skin color—an egregious case of “reverse discrimination.” But their stories sometimes fail to leave out important details. For example, in the Fisher case, of the forty-seven students who were offered admission to the U.T. system despite having lower test scores and grades than Fisher, only five were Black or Latino—forty-two were white. 168 Black and Latino students whose academic performance was as good or better than Fisher’s were also denied admission that year. Under U.T.’s top 10% rule, Texas high schoolers who made the cutoff claimed 92% of the in-state spots, leaving competition for the remaining openings incredibly fierce—Fisher, whose academic performance was nothing spectacular, had no compelling reason to believe that she was denied because of her race.

The debate around affirmative action can get incredibly fierce, pitting students against each other in a way eerily reminiscent of how they’re already viciously competing for spots at top schools, under the impression that every time they open the Common App they’re making decisions that could make or break their future.

Comedian Hasan Minhaj made quips about the Harvard lawsuit and this competition over college admissions in his show Patriot Act: “I’ve been in prep classes where I’ve been told not to check my race. ‘Hey, if you’re Asian, don’t check the box—it’s gonna hurt you.’ The penalty, right? And when I was in high school, I bought into that. I thought I wasn’t gonna get into Stanford because some Black kid was gonna take my spot. But I didn’t get into Stanford because I was dumb! I got a 1310 on the SAT—it was never gonna happen!”

In sum: Affirmative action is complicated. And now, the debate is focused on the most ridiculously selective institutions in the country—schools that the vast majority of Americans will never step foot in.

During my research, I was struck by a central irony that seems to have largely been lost to the winds of history: Powell’s swing-vote decision in the Bakke case, which determined the future of affirmative action in higher education, was greatly influenced by an amicus curiae brief submitted by Harvard, and now a lawsuit being brought against Harvard could be the death knell marking the end of affirmative action—at the very least in higher education, and possibly in many other aspects of American life. 

It all comes back to Harvard, the school whose agonizingly low acceptance rate and dazzling prestige makes it all but unattainable for everyone but the two thousand or so students who actually get a spot. So why do so many people care?

Margaret M. Chin, a sociologist at Hunter College, expressed her exasperation towards the plaintiffs in the Harvard case: “Why would any of you sue Harvard for doing this? For not accepting you? They reject ninety-five per cent of the people. To me, I was, like, ‘Oh, my God. These kids are really entitled.’”

“Our idea of freedom seemed so limited compared with that of the people who came before,” writes Hsu. “Decades after John F. Kennedy’s grand vision to act affirmatively, affirmative action’s last stand involves seats at the most elite universities in the world.”

Indeed, if you compare the very beginnings of affirmative action to its status today, the difference is startling. Affirmative action began as a policy encouraging employers to treat their newly-unionizing employees fairly. Now, it is the codified right of colleges to piece together their student bodies as they please, taking diversity into account if they wish. The original debate  pitted disgruntled employees against corporations in the fight for workers’ rights—the current debate pits students of various racial identities against each other for seats at the most exclusive tables in the country.

Affirmative action has been squeezed through a keyhole, transformed from something of concern to wide swaths of America into a political lightning rod drawing fire from the sort of families whose vicious vying for top spots in the Ivy League is often a sign of existing wealth—wealth that diminishes the benefits their children will reap from education at an elite university. 

Remember the point system University of Michigan had in place, the one that was challenged in the Gratz lawsuit? 20 automatic points for minorities might seem unfair. But the university also awarded students 10 points for attending elite high schools, eight for taking a certain number of AP classes, and four for being legacies. As Kimberly Reyes writes for The Atlantic, “That’s 22 points that certain affluent and middle-class students had built in that poor, first-generation college students had little or no access to.”

Many legal experts believe that S.F.F.A. will be rewarded by the majority-conservative Court, leading to a domino effect that will undoubtedly affect the composition of these top schools. “Affirmative action has repeatedly been administered last rites during the last five decades,” said Justin Driver, a law professor at Yale. “But these two cases unmistakably pose the gravest threats yet to affirmative action’s continued vitality.”

Whatever the outcome, the conversation remains fierce. The questions that are up for debate—How should America reckon with its contentious past? How should elite schools decide who’s in and who’s out? Is this country a meritocracy?—aren’t going away anytime soon. In the meantime, more high school seniors will continue to view their acceptance and rejection letters as holy evaluations of their character and all-knowing oracles for their future.

“Suspicions about the fitness and the qualifications of nonwhites didn’t begin with affirmative action. But it has become the most prominent way that these suspicions are aired, since the stakes are so clear,” writes Hsu. “Life rarely seems so zero-sum as it does when we imagine that we are vying for the lone seat in the classroom.”