Affirmative Action in the United States is as controversial as it is complex, and a topic that has sparked intense litigation, capturing a significant portion of American legal history. While the term itself was first linked to a policies promoting racial equality in 1961 in an Executive Order issued by President John F. Kennedy, its application to educational institutions began much earlier. In a nutshell, Affirmative Action refers to policies and practices aimed at providing opportunities to historically marginalized groups, particularly racial and ethnic minorities, women, and individuals with disabilities. The objective is to address the historical disadvantages and discrimination faced by these groups and promote equal opportunities.

Perhaps the first instance of historic litigation on affirmative action was Brown v. Board of Education, (1954) (‘Brown’). In actuality, this name was given to five separate cases that were heard by the U.S. Supreme Court regarding the constitutional validity of segregation in public schools. The Supreme Court ruled unanimously that racial segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States of America. The decision overturned the “separate but equal” doctrine established by Plessy v. Ferguson in 1896, which had allowed for racially segregated public facilities. Brown was pivotal in the American civil rights movement, highlighting the inherent inequality of segregated education and setting the stage for desegregation efforts across the United States.

Following Brown, Regents of the University of California v. Bakke (1978) (‘Regents’)was another landmark ruling on affirmative action. Allan Bakke, a white applicant, challenged the University of California’s affirmative action program, which set aside a specific number of seats for minority applicants. With a 5-4 majority, the Supreme Court held that quotas may not be used for reserving seats for minority applicants. However, it upheld the idea that race could be considered as one factor among many in the admissions process. This decision established the principle of “narrowly tailored” affirmative action, requiring institutions to consider race as part of a holistic review process rather than using rigid quotas.

In Grutter v. Bollinger (2003), University of Michigan Law School’s affirmative action policy was challenged by a white applicant who was denied admissions despite having the requisite qualifications. The admissions policy took candidates’ into consideration without granting them automatic advantage. The Court, in a 5-4 decision, held that the school’s policy, which considered race as one of many factors in admissions decisions, was “narrowly tailored” to achieve the compelling interest of diversity. The decision emphasized the educational benefits of diversity and recognized that race-conscious admissions programs could be constitutional under certain circumstances, and was therefore did not violate equal protection guaranteed by their Constitution.

The Supreme Court’s stance on affirmative action shifted significantly in Fisher v. University of Texas at Austin. Abigail Fisher, a white applicant, challenged the university’s affirmative action policy, claiming she was denied admission based on her race. In 2013, the Court sent the case back to the lower courts, instructing them to apply a strict scrutiny standard to assess whether the university’s admissions policy met the necessary requirements. The case was later revisited in 2016, and the Court upheld the university’s policy, emphasizing that it met the standards of strict scrutiny.

Most recently On June 29, 2023, U.S. the Supreme Court ruled the affirmative action policies of the University of Harvard and University of North Carolina as unconstitutional. This ruling now prohibits universities from now considering race as a factor for admission of students. What this implies, effectively, is that number of students in universities from under-represented minorities in the U.S. (Hispanic, Black, Asian-American, Indigenous etc.) will reduce over time, affecting the overall diversity of a student body. Will this impact international students applying to American universities for higher education? Probably.