If SCOTUS Bans Affirmative Action, How Will We Achieve Diversity?

By Chelsie Vokes

Colleges need to prepare diversity strategies now for the day when the Supreme Court outlaws race-conscious admissions …

When President Biden nominated Ketanji Brown Jackson for the U.S. Supreme Court, it seemed like a major civil rights victory.

But that victory could feel like a bitter irony this fall, when the high court hears two cases that will likely obliterate affirmative action. If Jackson gets approved by the Senate, she will probably be making two divergent types of history in her first months on the court: being its first black female and hearing cases that could likely overturn 40 years of legal precedents involving race-conscious admissions.

The cases, one against Harvard and the other against the University of North Carolina, were both brought by Students for Fair Admissions (“SFFA”), an organization founded by conservative entrepreneur and long-time affirmative action foe Ed Blum. If the Supreme Court rules in favor of the plaintiffs, as expected, colleges and universities would not only be barred from using race as a factor in admissions but also prohibited from knowing the race of applicants.

The decisions will likely force schools to completely revamp their admissions policies and rethink how to apply for education grants. Depending on the scope and content of the Supreme Court’s ruling, the decision could affect preferences for first-generation students and reverberate well beyond the realm of education, even jeopardizing grant programs for minority-owned businesses. These cases could also lead to further scrutiny of common practices such as legacy admissions.

In the University of North Carolina case, SFFA argues that whites and Asian American applicants were discriminated against because the university used race as a criterion for admissions. Previous Supreme Court cases had ruled that colleges could use race as one of several criteria for admissions, while prohibiting the use of racial quotas. But now, SFFA says those precedents are wrong and that using race as a criterion is illegal.

Harvard has a holistic process to determine admissions, that is, considering each candidate’s entire high school career and not looking at race as an explicit factor. However, SFFA argued that the subjective and vague nature of these holistic policies leaves room for implicit bias and consequently holds Asian American applicants to a far higher standard than white applicants. In support of its argument, the SFFA questioned why Harvard admits the same percentage of Black, Hispanic, white and Asian American students each year, even though application rates for each racial group differ significantly over time. SFFA says that Harvard must design a new race-blind admissions system.

The court hasn’t issued any opinions on affirmative action since June 2016, which was before Donald Trump was elected president and eventually secured three staunchly conservative appointments to the bench. Unless something unexpected occurs in the next year, it seems likely that the court will ban affirmative action.

The legal change could have huge implications for colleges and universities. If affirmative action is struck down, many colleges will need to overhaul their admissions practices. More than 100 public colleges currently use race as an admissions factor and 59 of the top 100 private colleges consider race as well, according to data from the College Board reported by Ballotpedia. Numerous other colleges that don’t consider race may need to determine whether their admissions policies disproportionally affect one race over others—a big undertaking that could require protracted and complicated analyses.

Colleges believe that diversity is critical to the spread of ideas. But without any race-conscious admissions policies, it’s likely that there will be substantially fewer minorities on many campuses. Past affirmative action bans decreased Black student enrollment by as much as 25% and Hispanic student enrollment by nearly 20%, according to a 2012 study cited by the Civil Rights Project. These bans discourage minority applicants and don’t even result in better academically credentialed student bodies. The Civil Rights Project also reported that SAT math scores dropped by 25 points after such bans.

If the court bans affirmative action, though, colleges and universities can find other methods to create the diverse campuses they desire. Like private employers, who generally can’t consider race in hiring, they could work to expand their applicant pool and encourage minorities to apply. They might also develop increased financial aid and other support programs to boost access to education.

States looking for a race-neutral alternative may follow the lead of Texas, which guarantees public university admission to all students who graduated in the top 10% of their high school classes. However, it is still unclear whether this approach really increases diversity.

Colleges and universities will be able to find ways to preserve—and boost—diversity on their campuses. But they should not wait until the court issues what will likely be a landmark affirmative action decision in the spring of 2023. Colleges and universities will need to make sweeping changes to admissions policies. They need to start preparing now.

Chelsie Vokes is a labor, employment and higher education attorney with Bowditch & Dewey, LLP in Massachusetts.

Related Posts:

The Ghost of Affirmative Action Past: Courage in the Bully Pulpit at Dartmouth

Will PWIs Embrace Change in a Nation at Unrest?

Harvard and Yale: Too Much Affirmative Action or Too Little?

Reexamining Our Approach to College Access









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