Many critics of affirmative action believe that the policy means that colleges set aside certain spots for minority candidates or predetermine a set number or percentage of underrepresented students for admissions. This misconception is based on an outdated view of affirmative action. Some colleges and universities, like the University of California system, have used quota-based policies to diversify their student bodies. This version of affirmative action was outlawed in 1978 after the UC system was sued by a white student named Allan Bakke, who had been rejected by the medical school at UC Davis.

Bakke argued that it was unfair for UC Davis to set aside 16 of its 100 medical school slots for minority applicants, and the Supreme Court agreed that such strict set-aside policies didn’t give equal consideration to all applicants, which violates the equal protection clause of the 14^th Amendment — a part of the U.S. Constitution originally implemented to protect the rights of formerly enslaved people after the Civil War. In its decision, the court ruled that colleges and universities could use race as one of many factors when evaluating applications, but it could not categorically rule out applicants for certain slots because of their race.

Even though the Bakke case allowed affirmative action to remain in college admissions processes, the policy has been challenged several times since 1978. Part of the reason affirmative action policies are so often under attack is that federal courts have decided that any policy that involves race must endure strict scrutiny, which is the highest level of legal scrutiny that can be used for evaluating a law. Basically, any race-based policies — even ones that are intended to undo past or present racism or discrimination — must be shown to serve an important purpose and must be demonstrated to be the mildest form of intervention necessary to achieve this purpose.

When the Supreme Court ruled against the University of California in 1978, it cited the Harvard model of admissions as an acceptable alternative. The Harvard model has effectively survived strict scrutiny by moving the goal of affirmative action away from fixing past discrimination against minority students and toward benefiting all students, majority and minority alike. Harvard has argued that it is important to all students, not just minority students, that the student body be diverse. According to Harvard, race may be one type of diversity that benefits its community, but this is an evaluation that it makes individually for each applicant. In other words, the Harvard policy states the racial identity of a Black or Latinx student might be considered if that student’s background would be beneficial to all students at the university.

The Harvard and UNC cases have been filed by Students For Fair Admissions, or SFFA, a group that claims to represent Asian American college applicants. According to the group, race-conscious admissions policies, such as those used by Harvard, benefit underrepresented minorities but penalize Asian American students. According to this argument, Asian American students are judged more harshly than Black or Latinx students, even when Asian American applicants have higher test scores and grades.

Critics of the SFFA lawsuit point out that Asian American students make up a significant share of the student body at schools such as Harvard when compared to their share of the overall population. Harvard, for example, stated that Asian American representation went up in recent years, from 17% to 21% of the entire student body, despite Asian Americans making up 6% of the U.S. population. Furthermore, affirmative action advocates argue that many Asian Americans also stand to benefit from policies that take race and other circumstances into account. And affirmative action is actually very popular among Asian Americans, with 70% supporting the policy.

Though claiming to represent Asian American students, the founder of SFFA is a 69-year-old white conservative stockbroker. Edward Blum, an opponent of numerous anti-racist policies, has helped file multiple lawsuits aimed at shifting power and resources toward white people and away from racial and ethnic minorities. Blum has waged a sustained campaign of engineering lawsuits that challenge policies that benefit racial minorities. As The New York Times reports, by filing lawsuits and connecting other plaintiffs to conservative donors, Blum “has orchestrated more than two dozen lawsuits challenging affirmative action practices and voting rights laws across the country." Most notably, Blum was behind the Shelby v. Holder case, which led to the Supreme Court gutting the Voting Rights Act of 1965 and setting the stage for the voter suppression laws that have spread throughout the country.

Blum has challenged affirmative action before, such as when he backed white applicant Abigail Fisher in her lawsuit against the University of Texas, which rejected her application to the university’s Austin campus but admitted Black and Latino applicants. After Fisher lost the case — in part because she failed to demonstrate that she was more qualified than the applicants who were admitted — Blum decided that he “needed Asian plaintiffs” for his next lawsuit, and created the SFFA organization to recruit Asian American applicants for his challenge.

Blum targeted Harvard, the school that served as the model for affirmative action, but lost in federal court in 2019. Now that the suit against Harvard has been revived by the Supreme Court, alongside a similar lawsuit against UNC, the current Supreme Court has a 6-3 conservative majority. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito have all opposed affirmative action policies in past cases. Meanwhile, the three justices appointed by former President Donald Trump — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — have generally been solid conservatives but do not have a significant track record on affirmative action in particular. Even so, many observers believe most, if not all, of the conservative judges will weaken or dismantle race-based considerations in college admissions once the case is litigated.

Affirmative action policies in college admissions are not necessarily doomed; Harvard’s policies, in particular, have been upheld for decades. However, the past successes of Blum’s lawsuits and the current makeup of the Supreme Court indicate that the policy is in real danger. The Court is expected to hear arguments beginning in October, and supporters and opponents of affirmative action will watch closely to see whether racial considerations can continue to play a role in college admissions going forward.