The end of affirmative action in higher ed

The U.S. Supreme Court ruled Thursday that colleges and universities can no longer use race as a factor in admissions decisions. The decision bans affirmative action, or race-conscious policies that many schools have relied on for more than 50 years to create diverse student bodies.

Students for Fair Admissions (SFFA) filed lawsuits in 2014 against the University of North Carolina and Harvard University over their acceptance policies. The nonprofit with more than 20,000 members advocates for ending race-conscious admissions. It claimed that the schools unfairly discriminated against certain groups of students in giving preference to others.

The Supreme Court heard arguments in October. Plaintiffs argued that UNC, a public school, violated the equal protection clause of the 14th Amendment and that Harvard violated Title VI of the Civil Rights Act of 1964. Representatives for both universities told the justices that race is just one of many factors taken into consideration when selecting applicants. “For decades, race-conscious admissions practices have provided the opportunity of higher education to Americans who want to pursue a college education,” UNC Chancellor Kevin Guskiewicz told me in an emailed statement.

“The evidence in this case is that for decades Harvard has been taking steps other than race-consciousness to increase the level of diversity, including ethnic and racial diversity,” said Seth Waxman, representing Harvard University. “Harvard is actually measuring how it is doing in terms of diversity and the benefits of diversity.”

The court on Thursday said the colleges lacked sufficient reasons for using race as a point of consideration and ruled that their admissions programs violate the 14th Amendment. Schools are still allowed to consider applicant essays in which students explain how race has influenced their lives, but institutions cannot use race itself as a criterion for admission.

“The student must be treated based on his or her experiences as an individual—not on the basis of race,” U.S. Chief Justice John Roberts wrote in the court opinion. “Many universities have for far too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

The justices ruled 6-3 in favor of SFFA in the UNC case, and 6-2 in the Harvard case. Justice Ketanji Brown Jackson recused herself from the Harvard case because she graduated from Harvard and Harvard Law, temporarily served on the school’s Board of Overseers, and her daughter currently attends the university.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” Justice Sonia Sotomayor wrote in her dissenting opinion. “The Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Many universities adopted affirmative action policies after the Civil Rights Act was signed into law. The Supreme Court has ruled on a handful of challenges to the policies since the 1970s. Justices have held that diversity on campuses is a compelling state interest, but the use of race in enrollment must meet strict scrutiny.

Strict scrutiny is the toughest level of judicial review. Under it, the government must prove there is a compelling state interest to use race-conscious admissions, and even then, it must apply race-based admissions by the least restrictive means.

In Regents of the University of California v. Bakke, 1978, the court ruled that schools could consider an applicant’s race but could not employ a quota system to ensure a diverse student body. In 2003, the court ruled in Grutter v. Bollinger that racial diversity is a valuable goal for schools as long as race is just one of many factors considered in acceptance. After that decision, Justice Sandra Day O’Connor said she hoped affirmative action would eventually be unnecessary if America provided strong educational opportunities for all children.

“Even though these programs have a benign purpose of attempting to rectify racial discrimination, they can be a double-edged sword,” said Barry McDonald, professor at Pepperdine Caruso School of Law. “It has to be used carefully so that the benefits outweigh the potential costs.”

A Pew Research Center survey conducted this spring found that 28 percent of black respondents think people have assumed they benefitted unfairly from affirmative action. The survey also found that 53 percent of English-speaking Asian American respondents believe race-conscious admissions makes the acceptance process less fair.

Even before Thursday’s ruling, nine states already banned public universities from using affirmative action in admissions. Four of those states, including Florida and California, have also adopted programs to guarantee students within a top percentage of the state’s high school class admission into public institutions. The Supreme Court in 2016 upheld the practice in Fisher v. University of Texas.

Other schools have prioritized offering scholarships to students from lower socioeconomic backgrounds, dropping standardized testing requirements, and expanding recruitment efforts.

But some argue that affirmative action policies are an integral way to achieve diversity and address racism.

“I don’t think that this stops our efforts to achieve racial diversity and multiracial diversity in education,” said Niyati Shah, director of litigation for Asian Americans Advancing Justice. “Having admissions policies that really look to individuals as a whole and can really speak to their character, their ability to succeed and overcome obstacles is a huge element and a huge part of having race-conscious admissions policies.”

The organization filed two briefs in the SFFA cases supporting affirmative action policies as a way to ensure minority students have the same education and opportunities as their white peers.

The Asian American Coalition for Education filed four amicus briefs in support of SFFA’s lawsuit against Harvard.

“What’s the best way of achieving, let’s say diversity? Is it diversity of thought or skin color?” coalition board member Chunyan Li said. “We don’t want to be treated as any bloc [of people]. We want to be treated as individuals. We have our own diversity within the Asian community.”

Li said legislators should focus on improving programs that could address gaps in the early and primary education systems. She said summer learning assistance programs, funding for learning support, and prioritizing student success for younger students would do more to level the playing field so universities could admit diverse student bodies without prioritizing racial factors.

“Do we want a Band-Aid approach to just give an artificial quota at the higher education level?” Li said. “Or do we really want to deal with the root cause of the education gap?”