For nearly half a century, colleges and universities have argued that affirmative action is crucial to their missions — and to American society. Campus diversity, they contend, is the path to a more tolerant and equitable union.
Now the practice — one of the most sustained efforts of the post-civil-rights era to improve racial equality — is under threat. On Monday, a newly constituted Supreme Court with a conservative supermajority will hear arguments in two cases challenging affirmative action. The likely outcome, experts said, is a nationwide ban.
“Imagine a nation that produces people who go on to leadership in the country who have no respect for people who are different,” Ruth Simmons, the first Black leader of an Ivy League school and a daughter of sharecroppers, said in a 2020 interview. “What’s at stake,” the former Brown University president said, “is the future of the country.”
The court’s conservative majority has shown, in recent rulings, that it has no qualms with overturning longstanding precedents. In June, the court eliminated the constitutional right to abortion by overruling Roe v. Wade, which sparked a nationwide backlash.
However, the legal precedent that allows affirmative action in college admissions, the 2003 decision known as Grutter v. Bollinger, would not appear to have the same public ground swell behind it. In polling by the Pew Research Center, approximately three-quarters of Americans, including majorities of every racial group, say that race and ethnicity should not be factors in college admissions.
“It would be a weird court that is willing to overrule Roe, but then decides to take an incremental approach in this area,” said Jeannie Suk Gersen, a Harvard constitutional law professor.
A ban on affirmative action would largely affect schools that are more selective about admissions, such as the Ivies, liberal arts colleges, and competitive state schools, where large numbers of applicants vie for a relatively small number of seats.
Most US college students do not attend such schools, said Angel Pérez, chief executive of the National Association for College Admission Counseling. They attend institutions with high acceptance rates and simpler admissions criteria, such as minimum GPA requirements. “They’re not social engineering a class,” he said.
Those sorts of less selective schools, places like the University of Massachusetts Boston, would not be expected to experience a uniform decline in racial diversity, experts said.
The nation’s most selective schools, however, would likely see substantial decreases in the number of Black, Hispanic, and Native American students admitted, at least in the short term. According to an estimate submitted to the court by Harvard, if the school eliminated the consideration of race from its admissions practices, the number of Black and Hispanic students on campus would fall by 1,000 within four years, compared to a total undergraduate enrollment of around 7,000.
The Harvard and University of North Carolina cases cut to the core controversies of affirmative action: Who wins and who loses? And is the system fair?
Supporters of maintaining such policies say students of all racial groups benefit: diverse campuses enrich education for all.
Some also argue that an outsized focus on affirmative action overshadows other admissions practices that are also questionable. Legacy preferences, athletic recruiting, and geographic diversity tend to favor whites, Tufts sociologist Natasha Warikoo has argued.
Affirmative action’s critics contend the diversity rationale is, at best, oversold, that the educational benefits of racial diversity are merely asserted not proven, and, at worst, a thin cover for “crude racial stereotyping,” as libertarian legal scholar Ilya Somin has written.
Additionally, critics argue that Asian Americans, who outscore other racial groups on standardized tests, are granted fewer admissions than they otherwise would get without affirmative action. (Harvard strenuously denied in court it maintains any kind of racial quota for students, which would be illegal under current Supreme Court precedent.)
“They do it not because they hate Asian Americans or don’t want them on campus,” Somin said, “but simply because they feel that having too many Asian Americans means they have too few from other groups.”
The lawsuits now before the court accuse Harvard and UNC of illegally discriminating against Asian American applicants in Harvard’s case, and Asian American and white applicants in UNC’s.
The Harvard lawsuit alleges the school held Asian American applicants to higher standards and used a subjective “personal rating” that incorporated judgements about applicants’ kindness, courage, and “positive personality” and had the effect of weakening their applications.
In court papers, Harvard contended that any apparent “penalty” for Asian American applicants was a function of factors that are correlated with race, such as socioeconomic status and intended career path, but not race itself. “No reasonable fact-finder could conclude that . . . [Harvard] intentionally discriminates against Asian Americans,” the school’s lawyers argued.
Lower courts ruled in Harvard’s and UNC’s favor. “[T]here is no credible evidence that corroborates [the accusation of] improper discrimination,” US District Judge Allison Burroughs wrote in her 2019 decision in the Harvard case. An appeals court upheld the ruling.
Harvard declined to comment on the litigation.
In a statement, UNC chancellor Kevin Guskiewicz said diversity is fundamental to higher education. “Our nation needs the next generation of leaders to be ready to participate in our diverse democracy by thinking critically, embracing differences, and forging common ground.”
To ban affirmative action, the Supreme Court need not find that Burroughs and other lower courts were wrong, said Gersen, the Harvard law professor, but rather that the practice of any kind of race-based admissions permissible under the Grutter precedent is not legal.
“The real question they will be answering is whether they should overturn Grutter and declare that consideration of race in admissions at all is unlawful,” she said.
The plaintiff in both lawsuits, a group called Students for Fair Admissions, has argued that race-based affirmative action violates the equal protection clause of the Constitution’s 14th Amendment and Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in programs that receive federal funding. (UNC is subject to the 14th Amendment because it is public; both schools are subject to the Civil Rights Act.)
SFFA was founded by Edward Blum, a judicial activist who has spearheaded various lawsuits tailor-made to overturn policies that encode racial preferences into law. One case he backed, Shelby County v. Holder, led the Supreme Court in 2013 to eliminate some of the key provisions of the Voting Rights Act, one of the fundamental civil rights laws of the 1960s.
Warikoo of Tufts, the author of a recent book on affirmative action, finds the Blum group’s appeal to civil rights law grimly ironic.
“Laws that were put in place to protect African Americans from racial discrimination are now being used to say you can’t have policies that improve their [access to] opportunity,” she said.
Blum sees civil rights law differently.
“The founding principle of the Civil Rights Act was the promotion of the belief that an individual’s race or ethnicity should not be an element to either help them or harm them in their life’s endeavors,” Blum said in an interview last week.
How affirmative action has changed elite campuses
Since the 1960s, affirmative action has changed the face of selective American campuses. Elite schools that were almost exclusively white are more representative of the country’s population.
Harvard’s current freshman class, for example, is 16 percent Black (compared to 14 percent of the US population) and 13 percent Hispanic (compared to 19 percent). Whites make up 40 percent of the class, compared to 59 percent of the population. Students of Asian origin make up 28 percent of the class, compared to 6 percent of the population.
For Noah Harris, a former Harvard student body president who is Black, the college’s diversity was something of a revelation. Coming from Mississippi, “one of the poorest states in the country where almost everyone is Black or white, and a Southern traditionalist at that,” he met classmates from a broad range of ethnic and socioeconomic backgrounds, he said.
“I never would have met these people or at least not until much later in life,” he said.
What happens when affirmative action is banned?
After California banned affirmative action in 1998 following a referendum, many Black and Hispanic students attended less selective schools than they would have otherwise, according to research by Zachary Bleemer, a Yale economist.
That meant that fewer Black and Hispanic students attended the University of California’s top campuses and some “cascaded” out of the state system altogether, Bleemer said, ending up instead at local public universities or community colleges that are less prestigious and devote fewer resources to students. Consequentially, Bleemer found in a recent study that Hispanic high school graduates who applied to the University of California after the ban earned 5 percent lower wages later in life than those who applied before the ban. Graduation rates also fell.
The next step, if affirmative action is outlawed
A ruling in the cases is expected sometime next year. If the Supreme Court overrules Grutter, university administrators will not be caught off guard.
Two strategies have emerged in states with affirmative action bans.
In Texas, after a federal court banned affirmative action in 1996, the state guaranteed admission to any University of Texas campus for students graduating in the top 10 percent of their high school class. (The admission policy’s impact on diversity is a matter of dispute.)
In the other approach, schools could use neighborhood-level demographic data and admit more students from ZIP codes or precincts with high percentages of Black or Hispanic residents, said Pérez. However, he added that no school would publicly acknowledge using such a system as it, too, could be vulnerable to legal challenge.
Correction: An earlier version of this story misstated the political orientation of legal scholar Ilya Somin.
Mike Damiano can be reached at firstname.lastname@example.org.