U.S. Supreme Court Considering Challenges to Affirmative Action and the Indian Child Welfare Act

U.S. Supreme Court Considering Challenges to Affirmative Action and the Indian Child Welfare Act

by Hon. Anna Joyce

While at first glance, a case about affirmative action and a case about the Indian Child Welfare Act (ICWA) might not appear to have much in common.  But this term, the United States Supreme Court is hearing challenges to both affirmative action and ICWA based on a similar underlying premise:  that laws or policies enacted to protect people of color are in fact unlawful discrimination based on race.

Students for Fair Admissions, Inc v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College

On October 31, the court heard over five hours of oral arguments in two cases challenging affirmative action policies at universities.  UNC considers an applicant’s race, among many other factors—including military status, geographic diversity, socioeconomic status—because underrepresented minorities are admitted at lower rates than their white and Asian-American peers.  UNC describes its application review process as “a race-conscious holistic review.”  Harvard follows a similar process and for similar reasons.

SFFA alleges that UNC and Harvard’s processes violate the Fourteenth Amendment because they consider race as a factor in the admissions process.  SFFA argues that the Equal Protection Clause mandates that race never be a factor, with “no exceptions.”  SFFA relies on one of the Supreme Court’s seminal cases on race, Brown v. Board of Education, for the proposition that race-based decisions are per se unconstitutional.

The schools argue that the history of the Fourteenth Amendment should be understood to allow some race-conscious measures.  They point to the Court’s prior cases that have allowed some consideration of race in admissions provided that the universities show that their admissions processes satisfy strict scrutiny, i.e., that they are pursuing a compelling interest and doing so in a narrowly tailored way.  In their view, Brown stands only for the proposition that race-based segregation violates the Equal Protection Clause; in contrast, policies that bring students together “bear no such badge.”

Brackeen v. Haaland

On November 9, the court heard argument in a case challenging the constitutionality of ICWA.  Congress passed that law in 1978 in response to the high rates of Native American children being removed from their homes and being placed with white adoptive families.  The law, among other things, creates a preference for Native American children to be placed with Native American families.  Three white couples who want to adopt Native American children challenged the Act, arguing, among other things, that the law discriminates against them based on their race and is thus subject to strict scrutiny review.  Texas, which is also a party, echoes that argument, asserting that ICWA violates the equal protection component of the Due Process Clause of the Fifth Amendment by categorizing children “based on genetics and ancestry” and potential adoptive parents based on their race.  The tribal defendants and the Secretary of the Interior assert that ICWA’s classifications distinguishing between Indians and non-Indians are “political rather than racial” and are thus subject only to rational-basis review.