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The Supreme Court of the United States will hear oral arguments for two lawsuits that could put a death knell to the consideration of race in admissions on Oct. 31. 

The first hearing will begin at 10:00 a.m., when the courts will begin to hear oral argument in Students for Fair Admissions v. University of North Carolina at Chapel Hill. A second case, SFFA v. Harvard University, will be heard later that day. 

40 students from Yale will join student delegations from other universities — including Harvard University and the University of North Carolina Chapel Hill, the two defendants — on the steps of the Supreme Court that morning to protest the attempts to repeal affirmative action. 

“Regardless of what the Supreme Court decides, I think it’s important for us to show the community and people that come after us that we were there, we were fighting,” Resty Fufunan ’24, one of the student organizers of these actions, said. “Students for Fair Admissions does not go unopposed. There are Asian Americans and, more broadly, people of color that value affirmative action, that value diversity on campus.”

Yale’s forty-person delegation includes students from all four of Yale’s primary organizing groups for students of color: the Asian American Students Alliance, the Native and Indigenous Student Association at Yale , the Black Student Alliance at Yale and Movimiento Estudiantil Chicano de Aztlán de Yale. 

For Fufunan, the demonstration’s core goal is to promote awareness of the potential overturning of race-conscious admissions, which some universities practice to increase numbers of students from historically-underrepresented or marginalized backgrounds in an attempt to counter structural education barriers. 

Fufunan also noted the importance of publicly opposing attacks to affirmative action — which, for him, is especially critical as an Asian American. SFFA has positioned itself as defending Asian Americans, who the organization claims have been harmed by affirmative action.

A final decision on the pair of cases is expected next spring.

Students for Fair Admissions, led by longtime anti-affirmative action legal activist Edward Blum, sued both Harvard and UNC-Chapel Hill in Nov. of 2014, accusing them of unlawful bias in their admissions processes. In the lawsuit against UNC-Chapel Hill, SFFA claims that the consideration of race in college admissions processes violates the equal protection rights of white and Asian American students. In the Harvard case, the group argues that Asian American rights are infringed upon.

For Blum, cases like these are “a restoration” of American civil rights, according to an interview with the Washington Post.

“The founding principles were that your race and your ethnicity should not be used to help you or harm you in your life’s endeavors,” Blum told the Post. “I think the majority of Americans will think of this as a good outcome and then be a stepping stone to other good outcomes, not just in the law but in the way we see each other.”

In Sept. of 2019, a district court upheld Harvard’s admissions policy, and in Oct. of 2021, a district court also upheld UNC-Chapel Hill’s. Following a series of appeals — in which an appellate court also ruled in favor of Harvard’s admissions policy — SFFA, in 2021, filed a petition asking the Supreme Court to hear both cases. 

This past January, the Supreme Court agreed to see both cases together. Over the summer, the court reversed this decision, separating the cases once again. Justice Ketanji Brown Jackson recused herself from the Harvard case due to her prior role on the school’s board of overseers, though she will sit for SFFA v. UNC.

Before the cases were redivided, legal scholars expected a 6–3 decision in SFFA’s favor, per a January article in the New Yorker. Scholars expect the prospective overturning of affirmative action to incur legal onslaughts on diversity programs in other areas of American life: educational measures, yes, but also hiring, housing and other sectors. 

On Oct. 30, attendees are set to gather at the Grand Hyatt Hotel in Washington, D.C. for a celebration of diversity. The event will feature celebrity speakers, student speakers and student performances that express the belief that racial diversity enriches campus life. The following morning, while at the Supreme Court, organizers plan to livestream the court proceedings and potentially line up at the door to see the oral arguments in person. 

Fufunan noted that there are also elements of on-campus organizing in place, such as a campus-wide postering campaign and a teach-in, to generate more awareness about affirmative action — and the threats it is under — among students.

Efforts at Yale

Fufunan said this is the first time since 2019 — when students and professors protested insufficient support for the Ethnicity, Race & Migration program and called for the departmentalization of ER&M — that these four groups have come together for such an undertaking. 

“We have representatives from all four going together, being in solidarity with each other and protesting with each other,” Fufunan said. “And I think that part is very important, that we’re setting this precedent of intercultural solidarity and intercultural organizing.”

Noting that the four groups share similar goals and “have always been in conversation together,” Fufunan expressed his hope that other organizers after this cohort will continue to collaborate across cultural communities. 

The effort will be funded through the Yale College Dean’s office and the NAACP’s Legal Defense Fund.

Student organizers will travel to D.C. on Saturday and stay overnight until the oral arguments on Monday. Each of the four organizing groups received a baseline of 10 students able to travel to D.C., and groups with fewer than 10 students attending were asked to give their extra seats to AASA — which, Fufunan said, the other groups were “gracious enough” to do. 

Students are also working to generate attention on campus. Over the past week, organizers from AASA created and posted a fact sheet with the intention of increasing awareness of the threats affirmative action is facing. 

Additionally, lawyers and other staffers from organizations like the LDF are participating in a virtual teach-in to offer a general overview of the present affirmative action situation and explain the significance of its precarious legal state. 

The pair of Supreme Court cases implicate Harvard University and the University of North Carolina specifically for their admissions practices but have the potential to affect schools across the country.

Over the summer, both Harvard and UNC-Chapel Hill filed amicus curiae — or friend of the court — briefs in opposition to SFFA’s stance. A total of 82 corporations and business groups, including 25 Harvard student and alumni organizations, signed three amicus briefs asking the Court to uphold over 40 years of precedent by ruling again that it is legally permissible to consider race as one of many factors in admissions to higher education.

Yale, along with 14 other schools — Brown University, The California Institute of Technology, Carnegie Mellon University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Johns Hopkins University, Princeton University, the University of Chicago, the University of Pennsylvania, Vanderbilt University and Washington University in St. Louis — also signed on to support affirmative action.

“Diversity fosters a more robust spirit of free inquiry and encourages dialogue that sparks new insights,” the joint brief reads. “Diversity encourages students to question their own assumptions, to test received truths, and to appreciate the complexity of the modern world.” 

Yale’s advocacy — on the student and administrative level — reflects nationwide support for affirmative action and educational diversity.

Per a national poll conducted by The Leadership Conference Education Fund in September, 87 percent of respondents believe that all students benefit from college campuses that reflect the diversity of Americans. 64 percent of respondents believe affirmative action helps level the playing field and gives all students, regardless of their race or background, a fair shot at attending college and 54 percent believe it is important that the Supreme Court protects affirmative action.

Speaking of these results during the interorganizational press conference, president and CEO Maya Wiley said that defending affirmative action is paramount to protecting American democracy. 

“One thing is clear – the future of our multiracial democracy is at stake,” Wiley said. “The civil rights community is united because we know that we are stronger together, even in the face of the so-called Students for Fair Admissions’ — and Ed Blum’s — attacks on affirmative action… We must protect this vital tool for ensuring equal opportunity because we know college campuses that reflect the diversity of who we are as Americans make us stronger.”

The role of Asian American organizers in the affirmative action debate

For Fufunan, a co-moderator of the Asian American Student Alliance, advocates must dispel misconceptions about who affirmative action does and does not benefit — and specifically correct the false narrative that affirmative action is harmful to Asian Americans. 

“A lot of [SFFA’s] argument falls on, ‘Oh, affirmative action precludes a lot of Asian Americans with high test scores, with good SAT scores, with good grades — quote unquote high-achieving Asian Americans — from getting into elite universities,” Fufuan said. “Another part of their argument is also racial bias, and that’s not to say that there isn’t racial bias in admissions, but overwhelmingly, studies have shown that affirmative action has largely benefited Asian Americans.”

On Oct. 26, The Leadership Conference Education Fund, Asian Americans Advancing Justice,  Lawyers’ Committee for Civil Rights Under Law and the Legal Defense Fund held a press conference to discuss imminent threats to affirmative action. 

During the press conference, AAJC president and executive director John C. Yang expressed similar sentiments as Fufunan. 

“The opposition does not speak for Asian Americans, and we reject these false narratives rooted in white supremacy to pit communities of color against one another,” Yang said. “The majority of Asian Americans have consistently supported affirmative action, which allows all students to share their whole story that is inclusive of their identities, histories, and lived experiences. We stand with our Black, Latino, Pacific Islander, and Indigenous allies to protect race-conscious admissions so we can continue to break down systemic and racial barriers that have denied too many access to a quality education.”

A decision from the Supreme Court on the fate of affirmative action is expected in the spring of 2023.