It appears like the Supreme Court will close its term by significantly weakening a strategy used by universities to increase racial diversity on campus.
How schools will fill this void, or whether the verdict would cause colleges to backtrack on a goal that has been a priority for decades, remains to be seen.
It has been possible for affirmative action in higher education to persist because to more moderate justices like the late Sandra Day O’Connor, but during oral arguments in October, the court revamped by former President Trump and Sen. Mitch McConnell (R-Ky.) sounded ready to abolish it.
Some of the more prosperous universities are planning to bolster their dedication to diversity through other means if race-conscious admissions decline. However, institutions in the nine states that prohibited the practise many years ago don’t provide many classes on how to increase the enrollment of Black and Latinx students without using racial profiling.
“There is no substitute for race-based affirmative action,” said Liz King, senior education programme director at the Leadership Conference on Civil and Human Rights, which represents over 230 national organisations. According to the authors, “Affirmative action is a critical part of ensuring racial justice and equity in higher education.”
The fate of two lawsuits, brought by the organisation Students for Fair Admissions, which challenges racial preferences in admissions at two of the nation’s oldest colleges (Harvard and the University of North Carolina at Chapel Hill), rests in the hands of the Supreme Court.
The group, which claims to speak for 20,000 students, has essentially charged that Harvard deliberately favours white applications over Asian American ones. Grutter v. Bollinger is a major case that has influenced college admissions rules since 2003, and the organisation has spent decades seeking to convince the court to reverse its decision. However, civil rights activists and educators contend that a complete prohibition on discussing race will have the opposite effect and actually make things worse for minorities in the long run. They argue that the unique challenges that Black and brown students confront should be considered, and that race-neutral admissions standards do not.
If the Supreme Court rules against affirmative action in college admissions, there would be four main effects:
A confined ruling versus an all-out assault
The first thing lawyers, policymakers, and the press will do after learning that the Supreme Court has officially ended affirmative action in higher education is to speed-read the majority opinion to find out how far the majority decides to go: will the opinion solely focus on colleges, or will it suggest ending the practise in hiring as well?
Concerns have been voiced by civil rights and education advocates that those working to limit the use of race-based affirmative action may see this as an opportunity to curtail gender-focused programmes as well.
Even while the Supreme Court has its own standards, David Hinojosa, who argued against the complaint against UNC on behalf of a group of students, said he believes the justices will focus carefully on the subject before them.
Hinojosa, an attorney with the Lawyers’ Committee for Civil Rights Under Law, stated, “The question before the court is whether or not you can use race as a plus factor in admissions.” He emphasised that the purpose of increasing diversity in freshmen classrooms is not being questioned, only this particular “tool” for achieving that goal.
Hinojosa argued that federal funding for minority-serving institutions like HBCUs would not be jeopardised by a judgement in favour of SFFA. Affinity organisations on campus, anti-discrimination education for teachers, diversity and inclusion initiatives, job opportunities, and the recruiting process will not be impacted. He also expressed scepticism that affirmative action programmes for women in the admissions process would be impacted “because race is subject to higher scrutiny by the court.”
Concerned that students won’t be allowed to discuss their own experiences or racial identity in their college essays, which many judges are likely to view as a violation of free speech, civil rights groups have also dismissed those concerns.
The admissions staff at a university will scramble to find a solution.
None of the states that have outlawed affirmative action provide a clear way for elite universities like Harvard and UNC. This includes California, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and Idaho.
With the passage of Proposition 209, California became the first state to outlaw discrimination based on race and gender in public school admissions and employment. The state’s public university system has had trouble enrolling diverse classes, but lawmakers in the mostly blue state have been unable to repeal it. (The practise was illegal in the state of Washington from 1998 to 2022.)
Underrepresented student enrollment “dropped precipitously at [the University of California], and by 50 percent or more at UC’s most selective campuses,” the university system noted in an amicus brief agreeing with UNC and Harvard after the plan was launched.
The University of California undertook race-neutral efforts, such as outreach programmes for low-income students and students from families with little or no college experience, in an attempt to reduce their losses.
Those initiatives “have allowed UC to make significant gains in its system-wide diversity,” the president and chancellors wrote. But despite its best efforts, UC has not been able to attract a racially diverse enough student body to reap the benefits of diversity in the classroom.
Counsellors at universities around the country are considering alternatives to using race in applications in order to maintain campus diversity.
According to Angel Pérez, CEO of the National Association for College Admission Counselling, a student’s home ZIP code and focused recruitment could have a significant impact on campus diversity in the future.
A judge’s ruling prohibiting the use of race will result in the elimination of the racial preference box, he said in a 2016 interview. But it doesn’t mean schools won’t try to guess at students’ histories with some degree of accuracy.
Details of admissions policies may be subject to Supreme Court scrutiny.
One specific aspect of Harvard is being challenged in court: the institution’s “personal rating.”
Although previous courts have upheld the practise, Students for Fair Admissions has noted that Asian Americans tend to receive lower personal rating scores (based in part on letters of recommendation and an essay) than Black and Latino applicants.
Schools should be aware of the Supreme Court’s interest in their purportedly race-neutral admissions practises and understand why some justices are openly sceptical of the rating system.
In October, Justice Samuel Alito stated, “The record shows that Asian student applicants get the lowest personal scores of any other group.” Why is it the case?” There must be something wrong with this individual score, or else these pupils truly do lack integrity, courage, generosity, and empathy to the same degree as students of other races.
To a large extent, Asian Americans who believe elite colleges are deliberately excluding them due to the disparity in their test scores have supported SFFA’s proposal to restrict race-conscious admissions.
“Asian American children have suffered severely from this kind of discrimination,” said Mike Zhao, president of the Asian American Coalition for Education, in an interview. Asian Americans have long held the reputation of being the most prosperous and educated minority in the United States. However, because of prejudice, our kids have to pretend they aren’t of a certain race when they apply to schools. That’s too bad. That’s absolutely wrong on a social level.
Zhao, whose organisation supports SFFA, has stated that Asian American students are subjected to a more stringent admissions process and often have to manage an excessive course load. He added that depression and thoughts of suicide are experienced by others.
