Affirmative action, an active effort to provide access to educational and employment opportunities to historically underrepresented groups, is now in danger of being eradicated by the Supreme Court. While the Court upheld affirmative action in Grutter v. Bollinger in 2003, it suggested in its “sunset clause” of the opinion that the issue should be revisited in twenty-five years. Two cases concerning affirmative action in higher education are now before the current conservative-led Court, which has already indicated that it is prepared to overrule its precedent.
Affirmative action in higher education has been advanced as a solution to past discriminatory practices against minorities in the United States. The Equal Protection Clause contained within the Fourteenth Amendment was passed in 1868 as one of the Reconstruction Amendments with the dual intent of ending slavery and protecting African Americans from discrimination. The Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” White citizens began to use the Equal Protection Clause’s protection of “any person” to challenge affirmative action as a form of reverse discrimination perpetrated against them.
Stodulkova, Simona, "Expiration of the Sunset Clause: Is the Clock Ticking for the Grutter Standard and Affirmative Action in Higher Education?" (2023). GGU Law Review Blog. 110.