Education after affirmative action

MARY REICHARD, HOST: It’s Tuesday the fourth of July, 2023.

You’re listening to WORLD Radio and we’re glad to have you along today. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

First up on The World and Everything in It: education after affirmative action. Last week, the U.S. Supreme Court ruled that considering race as one of many factors in college admissions violates the equal protection clause of the Constitution.

What was the basis for that decision? And what will colleges and universities do as they go forward? WORLD legal correspondent Jenny Rough brings us a report.

JENNY ROUGH, REPORTER: At the University of North Carolina, spring semester wrapped up at the end of April. But in late May, plenty of students still rushed around campus for summer classes. Like Naveen.

NAVEEN: Race seems to be a lot more kind of like color-based: white, black, brown.

Naveen grew up in Chicago, but his family is originally from India. According to the United Nations’ recent estimate, India has surpassed China as the most populous country in the world with over 1.4 billion people. Yet when Naveen applied to UNC, he couldn’t find a precise box to check in the race and ethnicity categories.

NAVEEN: I don't ever really see just Indian American as an option.

Naveen lumped himself into the Asian category.

NAVEEN: But I don't think that's typically how it's framed. I think usually when people think of Asian, they think of East Asian.

Another student who walked by also struggles with race and ethnic categories on application forms. He’s Arab.

STUDENT: Well, it will say, what's your race? And I'll put white. And then what's your ethnicity? And I'll try to put Middle Eastern because they don't have North African, so I have to put Middle Eastern. It's the closest thing.

The University of North Carolina collects this data because it takes race into consideration when deciding who to admit. So does Harvard College. But the organization Students for Fair Admissions sued both schools. It argued that UNC’s policy violated the equal protection clause of the 14th Amendment. And that Harvard’s policy violated Title VI of the Civil Rights Act. That prohibits race discrimination and applies to private schools that receive federal funds.

In a decision handed down last Thursday, the Supreme Court agreed with Students for Fair Admissions, and dismantled race-conscious admissions policies. One reason centered precisely on the conundrum the students mentioned: the classifications can be inaccurate.

MCDONALD: It’s all a big continuum. You know, it's just a big sort of blending of DNA.

Barry McDonald is a Supreme Court expert and Constitutional Law professor at Pepperdine University Caruso School of Law.

And to say that somebody's black, somebody's brown, somebody's white, somebody's Asian, you know, it's maybe generally true, but at the margins, it just gets very fuzzy and blurry.

The battle of how to handle racial preferences in college admissions has been playing out in the courts for almost 50 years. McDonald says proponents of affirmative action argue that racial preferences have benign motives.

BARRY MCDONALD: They're not designed to put burdens on people. They're designed to rectify past wrongs.

UNC is the first public university in the nation. It was established in 1789. But it excluded black students until 1951. Harvard opened in 1636. It admitted black students starting in the mid-1800s, but only a few until the 1970s.

Those who oppose affirmative action say even with good intentions—

MCDONALD: They can have damaging consequences, like institutionalizing stereotypes that minorities can't succeed on their own, and breeding resentment by the majority white population.

To determine whether a race-conscious admissions program passes constitutional muster, the court applies a test known as strict scrutiny. The schools must have a narrowly tailored process that furthers a compelling governmental interest. Here, the court said diversity as a goal is laudable, but it’s too abstract.

MCDONALD: We don't think these amorphous sort of concepts of preparing leaders for a racially diverse workforce are legitimate goals. We can't measure them. We don't even know what that means.

The court went on to say racial diversity in the classroom doesn’t further a compelling interest. Rather...

MCDONALD: It's just based on the notion of sort of stereotypes that if you bring more races together, you'll get a more diverse range of viewpoints. And he says that stereotyping people on the basis of their skin color.

The court also said for an affirmative action program to be narrowly tailored, it must have an endpoint. The 2003 case Grutter v. Bollinger centered on a similar program at the University of Michigan Law School. Back then, the court predicted that the use of racial preferences would no longer be necessary in 25 years. That would be 2028. But so far, UNC and Harvard have vaguely indicated they’ll end their programs once diversity is achieved. Not good enough for the court.

Even so, the recent court decision left the door open for universities to consider an applicant’s discussion about how race affected his or her life.

MCDONALD: You can't take into account the person's race, but you can take into account the person's racial story.

So how exactly will that work?

McDonald suspects high school guidance counselors will encourage students to write essays talking about their racial and ethnic experiences, such as obstacles they’ve personally overcome. Schools will also take into account non-explicit racial factors.

MCDONALD: Socioeconomic indicators, cultural indicators, geographic indicators.

He foresees more litigation in years to come.

MCDONALD: You're probably going have plaintiffs, white plaintiffs or Asian plaintiffs, coming in and saying that university was putting way too much weight on life experiences and not enough on raw academic indicators.

The court’s decision here doesn’t go against public opinion. Polls indicate about 70 percent of Americans oppose affirmative action on fairness grounds. At the University of North Carolina, the students I talked with were about 50-50 for or against. But all of them hoped to get more out of college than simply acquiring a knowledge base. They seemed hungry for relationships, including ones with others who have different backgrounds, ancestry, and cultures. And they seemed confident the educators would find a way to make it all happen.

STUDENT 2: There is a world where that diversity that you were mentioning earlier, as well as this academic merit, can be upheld.

Reporting for WORLD, I’m Jenny Rough, in Chapel Hill, North Carolina.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.