Supreme Court Takes on Affirmative Action in Education

The Supreme Court is set to hear oral arguments on Monday in a case that weighs whether colleges and universities should be allowed to continue using race as one of several factors in admissions decisions – a question that challenges more than 40 years of legal precedent and one that high court justices have considered and affirmed twice already in the last decade.

But given the court’s 6-3 conservative majority – a majority that many anticipate will overturn the longstanding civil right – an unusual coalition of higher education administrators, civil rights groups, former top-ranking officials from all branches of the military, faith groups, business leaders and the corporate community find themselves on the same side of an issue, arguing that eliminating race-conscious admissions policies would threaten the ability of the U.S. to remain an academic, economic and military powerhouse in a rapidly diversifying world.

“One thing is clear,” says Maya Wiley, president and CEO of The Leadership Conference Education Fund. “The future of our multiracial democracy is at stake. 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.”

At issue are two cases stemming from lawsuits against Harvard University and the University of North Carolina that argue certain admissions policies aimed at increasing diversity and leveling the playing field for historically disadvantaged applicants discriminate against Asian American applicants.

Both lawsuits, which the court initially enjoined and planned to consider together but is now considering separately, were filed by the group Students for Fair Admissions, an advocacy group that opposes race-based admissions policies and headed a previous lawsuit that reached the Supreme Court twice, in 2013 and 2016. Those challenges featured as a plaintiff a white student from Texas who was rejected from the University of Texas at Austin. The court ultimately found the school’s use of race in its admissions policy constitutional.

This time, the group – or more accurately, Edward Blum, the president of Students for Fair Admissions and conservative legal strategist who is now set to challenge the historic civil rights law in front of the Supreme Court for the third and fourth times – is arguing that race-based admissions policies intentionally discriminate against Asian American applicants. The admission policies, he argues, are aimed at limiting the number of Asian Americans who attend, and if race were not a factor and admissions were governed on traditional academic measures like test scores and transcripts, more Asian American students would qualify to attend.

Higher education policy experts, academics and college and university administrators refute that assertion and have long said that the consideration of race is part of what they describe as a “holistic” admissions policy. They underscore its importance in correcting for inequity at the K-12 level, where students of color have much less access to advanced courses, testing preparation, extracurricular activities and college counseling, and in higher education settings, especially at elite schools that most heavily depend on affirmative action to maintain diversity.

“Race-conscious admission policies ensure that highly qualified people from all walks of life have a fair shot at a system that too often stacks the deck against people of color or students from low-income communities,” says Damon Hewitt, president and executive director of Lawyers’ Committee for Civil Rights Under Law. “Race-conscious admissions do not discriminate on the basis of race and merely level the playing field and allow people and applicants to talk about their full identity and their full selves.”

“The truth is that, especially for students of color, race defines their lives – the kinds of jobs they have access to, the kinds of schools they’re learning in the K through 12 context, to even the houses that they will eventually be able to buy, their access to credit and, of course, their treatment by law enforcement,” he says. “Our world is not race-neutral, so why should college admissions be forced to be race-neutral?”

In fact, many schools are trying to find ways to make campuses even more accessible to Black and Hispanic students, along with low-income and other marginalized students, amid a national reckoning over the compounding inequity of the country’s education system and a pandemic that’s altering the higher education sector top to bottom.

The Broad Coalition Supporting Race-Conscious Admissions

The challenge has come under scrutiny by a band of strange bedfellows that goes beyond higher education and civil rights organizations and includes the former top brass in the military and a cross-section of major businesses.

“Diversity in the halls of academia directly affects performance in the theaters of war,” reads the brief filed by 35 former top military leaders, who warned that the Supreme Court’s ruling stands to diminish the military’s ability to cultivate a diverse and highly qualified officer corps, which hinges on its ability to recruit diverse classes into its service academies and Reserve Officer Training Corps.

“The diversity of these institutions and programs directly impacts the diversity of our military’s leadership,” they wrote. “The importance of diverse leadership has risen to new heights in recent years, as international conflicts and humanitarian crises require the military to perform civil functions that call for heightened cultural awareness and sensitivity to ethnic and religious issues. All service members – minority or otherwise – are better equipped to meet these challenges if they are educated in a racially diverse environment and guided by diverse leadership in the field.”

Business leaders and legal firms made the same argument – that if the court strips the ability of selective colleges and universities to admit a diverse pool of students, then they will have fewer candidates of color to choose from. Moreover, they argue, a diverse workforce pipeline is inherently a more talented one.

Notably, a number of Asian American organizations have sprung up in support of race-conscious admission policies as well, refuting Blum’s argument.

“Affirmative action and race-conscious admissions are about human dignity and it’s about the role of race in our lives,” says Sally Chen, the education equity program manager at Chinese for Affirmative Action, daughter of a non-English speaking immigrant family and a Harvard graduate who testified in the case. “Our stories are important.”

Chen and other Asian American organizers take particular exception to Blum, who they say is misrepresenting Asian Americans as a monolith and pitting them against one another and against other communities of color for personal gain.

“Ed Blum is no ally to students of color or to Asian American students,” Chen says. “He is not calling for anti-bias training, support for professors of color, founding cultural centers or anything that really supports students of color. He’s calling for the removal of the consideration of race in education and advancing Asian Americans as a front of this conservative, right-wing attack on civil rights and desegregation efforts.”

“Asian Americans need affirmative action as well,” she says.

In fact, 69% of Asian American registered voters favored affirmative action programs for people of color and women to get better access to higher education, according to the 2022 Asian American Voter Survey.

So do a majority of Americans.

A poll taken last month by NORC at the University of Chicago, which surveyed people’s opinions on affirmative action, diversity and opportunity in higher education, found that majorities want the Supreme Court to protect race-conscious admissions policies, believe that college admission panels should consider applicants’ racial background in addition to test scores and say that affirmative action helps address racial inequalities and promote equal opportunity.

As it relates specifically to the Supreme Court’s ruling, 54% said they believe it is important for the high court to protect affirmative action, 57% said they believe taking away affirmative action would “virtually shut out” many talented and qualified students of color from getting into certain schools and 52% said they believe that due to racial inequality, government action is necessary to level the playing field.

Even stronger majorities said that college and university admission panels should consider more than high school grades and test scores, including 76% who believe they should take into consideration the “lived experiences and the whole story” of a student, 74% who agree that they should look at “the whole student” and, notably, 70% who said they believe campuses need racial diversity in addition to diversity of students’ economic backgrounds to achieve true equality.

Of course, the court is not swayed by public opinion – as was displayed earlier this year with gusto when it overturned Roe v. Wade, the 50-year landmark ruling that protected women’s rights to abortion and which 61% of the American public supports. And Supreme Court tea-leaf readers have long been charting the slow dismembering of race-conscious admission policies.

When the court upheld race-conscious admission policy in 2003 in Grutter v. Bollinger, which involved the University of Michigan Law School, then-Justice Sandra Day O’Connor said in writing the opinion for the court that “race-conscious admissions policies must be limited in time.”

“We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote, setting in motion an artificial sunset that will expire in 2028.

In 2016, the court upheld the policy by a single vote, and it’s only grown more conservative since then. Should the court decide to overturn the long-standing ruling, it will perhaps be more of a numbers game than anything else.

Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court, plans to recuse herself from the high-profile case due to her close ties to Harvard, her alma mater and where she recently served out the last months of a six-year appointment to the Board of Overseers.

While four of the nine sitting justices graduated from Harvard Law School – including Justice Elena Kagan, who spent six years there as dean – Jackson’s affiliation runs deeper: She’s served as director of the alumni association, is a member of the Harvard Club of D.C. and the Harvard Black Alumni Society, and one of her children will be a freshmen there in the fall.

Jackson will sit and participate in the case challenging UNC’s admission policies.

With a decision potentially affecting admissions processes for the upcoming academic year, colleges and university leaders are evaluating ways to ensure the diversity of their campuses – especially given the drop in enrollment among students of color.

The National Student Clearinghouse reported last week that total enrollment in higher education declined 3.2% since 2020, prior to the pandemic, and that’s been driven in part by students of color. Enrollment has declined for Black students by nearly 7%, including 9.4% at public colleges and universities.

In California, where Proposition 209 has barred public colleges and universities from using affirmative action in admissions since 1996, the state systems have leaned on income and poverty as a proxy for race. But it hasn’t been effective, especially when it comes to admitting Latino students. Most recently, the University of California system halted its requirement that students submit an SAT or ACT score, which research has long tied to disproportionately benefiting affluent white students. But to no avail.

In an amicus brief it filed to the court in support of race-conscious admissions, the system admitted that it’s failed to achieve racial diversity since the proposition was passed.

“Despite its extensive efforts, UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity,” it wrote, warning the justices that its experiment with race-neutral admissions “demonstrates that highly competitive universities may not be able to achieve the benefits of student body diversity through race-neutral measures alone.”

Spooking higher education administrators further is the shifting landscape of the entire industry in the wake of the pandemic – mounting research challenging the return on investment of degrees, the push in K-12 schools to offer pathways into immediate employment and training programs to fill local workforce needs and the pull of benefits and wages in a tight labor market ahead of a potential recession.

“California has much to teach the rest of the country if, in fact, the U.S. Supreme Court does decide to reject that 40 years of precedent,” says Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund.

“Universities can and should undertake race-neutral efforts to do their best to eliminate or severely reduce the potential and serious likely reduction in admission for Black and brown students to universities,” he says. “But what we saw in California should be a cautionary tale for the rest of the country.”