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Affirmative action is facing its most difficult test

Everything you need to know about two Supreme Court cases that could have sweeping implications for race-based admissions and beyond.

This week, the Supreme Court will hear arguments in two related cases that are likely to drastically transform how admissions officers consider race as a factor in college applications, and possibly ban its consideration altogether.

The Court has supported the use of race in admissions for nearly 50 years, but what’s different now is its new conservative supermajority. Out of nine justices, six are now conservative, and with Chief Justice John Roberts’s acknowledgment of his preference for race-neutral admissions policies, a sweeping ban on affirmative action may be on the horizon.

The immediate question in the two lawsuits now pending before the Supreme Court — Students for Fair Admissions v. President & Fellows of Harvard College and Students For Fair Admissions v. University of North Carolina — is whether the Supreme Court should overrule Grutter v. Bollinger, the 2003 case that held that race may play a limited role in college admissions. In practice, race often functions as a tiebreaker when universities are deciding among many well-qualified students.

The overarching stakes in these cases, however, are much broader. The plaintiffs advocate a “colorblind” theory of the Constitution that would prohibit the government from considering race in virtually any context, including efforts to voluntarily integrate racially segregated grade schools and other institutions. Decisions such as Grutter have given the government limited authority to foster racial diversity. Though decisions in each case most likely won’t be released until the end of the court’s term in spring 2023, the Harvard and UNC cases are likely to eliminate that authority altogether.

The case against Harvard, a private university, contends that the school’s race-conscious selection process discriminates against Asian American applicants in violation of Title VI of the Civil Rights Act of 1964, so that they are less likely to be admitted than similarly qualified candidates who are Black, Hispanic, or white. The case against UNC, North Carolina’s top public university, claims that the unfair use of race among other admissions criteria gives excessive preference to applicants of certain underrepresented groups, discriminating against Asian and white students in the process. The plaintiff in that case is arguing that the practice violates both Title VI and the guarantee of equal protection under the 14th Amendment of the US Constitution. Both cases argue that the schools ignore race-neutral alternatives that might help them achieve their diversity goals.

Students For Fair Admissions, spearheaded by conservative legal strategist and former stockbroker Edward Blum, filed both lawsuits in 2014. Blum isn’t actually a student: He’s aided by millions in funding from conservative donors, and he’s known for recruiting plaintiffs to challenge race-based policies he deems unfair. Since the early 1990s, Blum has filed more than two dozen lawsuits against affirmative action practices and voting rights legislation.

Affirmative action has been used for more than half a century by colleges and universities, initially to encourage the participation of historically marginalized groups and mitigate the effects of decades of segregation by university systems. Since the landmark Regents of the University of California v. Bakke case in 1978, the Supreme Court has repeatedly held that such programs can be used as a tool to foster diversity among a university’s student body and that an applicant’s race or ethnic background could be deemed a plus when deciding between applicants who are similarly qualified. The court determined that students from underrepresented racial backgrounds could “promote beneficial educational pluralism” that benefits all students — a goal compelling enough to the justices that they have continued its use. Since Bakke, the court has upheld affirmative action in admissions despite multiple challenges, including Fisher v. University of Texas, decided as recently as 2016, in which Abigail N. Fisher, a white woman, claimed that she was rejected from the University of Texas at Austin because of preferences given to applicants of color.

Although decades of research support the conclusion that more diverse campuses benefit all students, the premise of the “colorblindness” theory is that race-conscious policies are so inherently misguided that they cannot be sustained regardless of their benefits. This theory has been around for a very long time — President Andrew Johnson, the white supremacist who spent much of his time in office frustrating Reconstruction, vetoed laws seeking to lift up enslaved people who had been freed because he claimed they would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.” More recently, conservatives including President Ronald Reagan have made similar attacks on affirmative action — often describing such programs as “reverse discrimination.”

Now, this kind of rhetoric is being echoed by Blum, the white activist behind the Harvard and UNC cases (he was, notably, also involved in the Fisher case). “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others,” Blum said in a statement in January. “Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.”

Campuses, however, continue to struggle to foster diversity, and advocates say affirmative action is still necessary even as America rapidly diversifies. For example, in 2020, 57 percent of undergraduates at UNC Chapel Hill were white, 12 percent identified as Asian, 9 percent as Hispanic or Latino, 8 percent as Black, and 4 percent were from international locations.

“Race-conscious admissions is a complicated issue because it gets deep down into who American society believes is deserving of opportunity,” said Liliana Garces, a professor of education and law at UT Austin who has co-written several amicus briefs on behalf of the University of Texas, Harvard, and UNC. “It’s about our conceptions of what we deem to be meritorious. Do we see merit as an individualized idea of working hard? Or do we believe that standardized tests themselves are biased and measure how much money someone’s family might have? [Affirmative action] touches fundamentally on issues of race and racism in our society and how we can get to the other side — to this ideal of not having race or ethnicity shape your life in a way that we think it shouldn’t.”

So how and when did race-conscious admissions become common, at least at elite universities, and how do they actually work in practice? And what could happen if the Supreme Court ends affirmative action?

Affirmative action, defined

Affirmative action refers to the programs and policies in which certain facets of identity — such as race, ethnicity, gender, disability status, even veteran status — are considered in the distribution of resources or opportunities.

They usually seek participation from historically underrepresented groups and can be found in the admissions processes of educational institutions, in hiring and promotions in the workplace, and in contracting, among other areas. Examples of affirmative action programs include the requirement that federal offices contract with racially underrepresented groups to receive federal funding, or schools that use race as a factor among many to evaluate an applicant (often called “race-conscious admissions”). When an organization sets a goal to hire or promote more women or makes an effort to recruit veterans, this is also considered affirmative action. Companies that take steps to review hiring policies to better accommodate underrepresented groups or develop training programs to support them are said to engage in affirmative action, too.

Historically proponents of affirmative action made two arguments for why it should exist. The first is simply that American society has an obligation to correct past injustices, and that means lifting up racial and other groups that have historically been marginalized or worse. But a majority of the justices rejected this argument in Bakke, with Justice Lewis Powell writing that lifting up a student from a disadvantaged racial group “does not justify a classification that imposes disadvantages upon” white applicants to a college or university.

Nevertheless, Powell did accept a different moral justification for affirmative action — the argument that diverse campuses benefit society as a whole. The “nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples,” Powell wrote in Bakke. Students who study alongside people of all races will learn from their classmates and receive a better education as a result, this thinking goes. They will also be more valuable employees when they graduate and work for companies that want to appeal to clients and customers from diverse backgrounds.

The Court’s affirmative action cases, in other words, have always centered the interests of white people. Powell’s opinion in Bakke ruled out the possibility that affirmative action may exist solely because it benefits people of color. And, while Powell concluded that some university affirmative action programs are permissible, they are permissible because they ultimately benefit white Americans and not just students of color.

If anything, the Court’s decisions in Grutter and Fisher were even more skeptical of race-conscious admissions programs than Bakke. Both decisions state that colorblindness should typically be the rule, and departures from that rule are only permitted in rare circumstances. And yet, these decisions ultimately concluded that universities may pay limited attention to race when deciding whom to admit from applicants who were all likely to thrive at the school. In so holding, the Court once again centered the interests of powerful actors rather than those of racial minorities.

“Major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints,” Justice Sandra Day O’Connor wrote in Grutter.

Because the Court has historically been ambivalent about affirmative action, it has placed several significant restrictions on affirmative action programs. Some universities, for example, used to operate quota systems — setting aside a certain number of seats for students from specific groups — but this practice was deemed illegal in Bakke. Other schools used to use point systems, where applicants were awarded “points” based on factors such as grades and test scores, as well as factors such as race, ethnicity, geography, athlete status, or legacy status. In Grutter, the Court held that race could not be weighed by schools in such a mathematically precise way.

Under current law, race may be considered as part of a holistic process that, in Grutter’s words, considers “all pertinent elements of diversity,” and that will sometimes “select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants.”

In practice, this means that few students will be admitted or denied admission because of their race. UNC, for example, says that it considers “more than forty criteria” when determining which students to admit, ranging from academic record to “athletic or artistic talents” to military service. A Black or Latino applicant might enjoy a slight advantage if their racial background will add diversity to the incoming class. The school also gives preference to veterans or to students from rural areas, because it also believes that these students have valuable experiences that their classmates can learn from.

In fact, a federal court found that “race plays a role in a very small percentage of decisions” at UNC — “1.2% for in-state students and 5.1% for out-of-state students.”

Affirmative action’s origins

The history of affirmative action starts not in the university system, but in labor policy. According to historian Hugh Davis Graham, the term first appeared in the National Labor Relations Act of 1935, a key piece of New Deal legislation that gave employees the right to form unions and required employers to bargain collectively with them. In that context, affirmative action was used as a term to compel employers who had engaged in unfair labor practices to compensate victims.

In the educational context, affirmative action began percolating among activists during the civil rights movement, and sociologists Anthony S. Chen and Lisa M. Stulberg say it became a part of higher education in two key phases. During the first phase, from 1963 to 1965, activists including Whitney Young, Kenneth B. Clark, and Martin Luther King Jr. espoused the philosophy that shaped the admissions policies. They argued that the equal treatment of Black Americans wasn’t enough to address longstanding racial inequality. In his 1964 book Why We Can’t Wait, King explains that Black people deserve “special, compensatory measures” in the workplace and in education due to the nature of American racism. In a 1965 interview, King explained that he believed it was fair to “request a multibillion-dollar program of preferential treatment for the Negro, or for any other minority group.” That same year, President Lyndon B. Johnson delivered the commencement address at Howard University and made the case for the compensatory rationale behind affirmative action:

You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.

At the same time, university leaders considered how they, too, could open up access at their institutions. “The mass mobilization of the civil rights movement led liberally minded leaders of educational institutions outside of the South to realize that their own schools were nearly as segregated as Alabama or Ole Miss, despite having had ‘open door’ policies for some time,” Chen told Vox. Racial diversity became a uniquely valued type of diversity, Chen said, and during these early years, administrators launched programs for “disadvantaged” youth, created exchange programs with Black colleges, in which Black faculty attended summer institutes at white universities and vice versa. Programs focused on recruiting more Black students from high schools that they previously overlooked and also Black faculty willing to work at all-white institutions.

Early affirmative action programs also sought to strengthen the nation’s Black colleges by pumping more resources into them and facilitating interactions between the faculty of Black institutions and white institutions, according to historian Eddie R. Cole in The Campus Color Line: College Presidents and the Struggle for Black Freedom. But the motives and results of these programs were mixed, leading many to collapse after a short while. For example, white university presidents sought out publicity for admitting Black students and used the efforts to gain promotions. When it came to directing resources to Black universities, administrators ended up abandoning the cause since some of them viewed Black institutions as inferior.

The second wave of affirmative action, which began in 1965 and ended with the Bakke decision in 1978, was marked by national unrest, with college campuses at the center of agitation. Students protested discrimination, and university leaders had no choice but to act. Black students took center stage in driving the policymaking process forward, Chen said, pushing schools to develop official affirmative action programs and give race greater weight as the form of diversity being sought. Bakke marked the end of this period of experimentation with affirmative action, once the court ruled that colleges and universities could only use affirmative action to achieve the goal of diversifying their campuses.

How affirmative action actually works today

Not all schools consider race during admissions, and nine states, including California and Washington state, have outright banned the consideration of race. The institutions that do consider race typically argue that it is part of a holistic review or “whole-person” review of a candidate’s application that evaluates academic merit, leadership qualities, recommendations, achievements in athletics or the arts, community service, and other factors.

At the University of Wisconsin Madison, where the acceptance rate is about 60 percent, the admissions website states that the school’s holistic application process is designed to help identify “remarkable students” and “diversity in personal background and experience” and does not use “formulas or charts.” The University of Maryland, where the acceptance rate is 51 percent, considers more than 26 specific factors including race, socioeconomic background, and ethnicity, but doesn’t specify how these factors are weighed against everything else. “We are charged with admitting and enrolling the most talented, diverse and interesting class possible,” the school’s website states. At Ohio’s Oberlin College, where the acceptance rate is 35 percent, the school says its goal is to “assemble an incoming class that represents a variety of talents, viewpoints, and achievements,” and that its holistic review process means that “no one piece” of an applicant’s application will guarantee that they will or won’t be admitted.

Harvard, which is often credited with creating a leading model of affirmative action, uses “tips” or plus factors that might tip an applicant into Harvard’s group of admitted students. While the overwhelming majority of applicants to Harvard are rejected — the school has a 5 percent acceptance rate and receives 40,000 applications on average each year — tips such as “outstanding and unusual intellectual ability, unusually appealing personal qualities, outstanding capacity for leadership, creative ability, athletic ability, legacy status, and geographic, ethnic, or economic factors” can help an otherwise rejected student gain admission. In Harvard, however, the petitioners argue that the school penalizes Asian students when it comes to the school’s “personal rating,” which measures qualities like integrity, courage, and empathy. “Although these personalities have nothing to do with race, Asian Americans receive by far the worst scores,” the petitioners wrote.

They also argue that Harvard engages in “racial balancing,” a practice that they say occurs when a school seeks some specific percentage of a particular race. They also allege that Harvard doesn’t treat race as merely a plus and that “Harvard is obsessed with race,” since it “matters more than every other diversity factor” in an application. According to the petitioner, race is a “determinative” element for at least 45 percent of admitted Black and Hispanic students, or nearly 1,000 students during a four-year period.

Despite the historic media focus on Black Americans as the only group of people to benefit from affirmative action in admissions, the programs have supported a broad range of communities, including Native Americans, Arab Americans, Latinos, Asian Americans, and Black Americans. Between 1976 and 2008, Black and American Indian people’s share of college enrollment increased by 39 percent and 46 percent, respectively, while Hispanic and Asian/Pacific Islander people’s enrollment more than doubled during that time period. Women’s college enrollment also saw increases. Between 1967 and 2009, female college enrollment more than doubled, with the percentage of white women ages 25 to 35 with a college degree growing from less than 15 percent to more than 40 percent, though it is unclear how much of these gains can be attributed to affirmative action.

Critics have painted affirmative action as a Black issue because that strategy allows them to use negative racial stereotypes to argue that the programs serve an under-qualified or undeserving group of people. Media depictions — like the 2003 Newsweek cover story titled “Do We Still Need Affirmative Action? 10 Ways to Think About It Now” that featured the image of a Black male model in glasses, khaki pants, and a tie — have argued that the programs are “not about people of color and they were about extending advantages to elite Blacks, rather than impoverished African Americans,” wrote legal scholar Kimberlé Crenshaw at the time. “Of course nothing could be further from the truth. This is simply a gross distortion of reality, especially given that the primary beneficiaries of affirmative action have been Euro-American women.” (When it came to employment, Crenshaw wasn’t wrong: Early reports found that affirmative action sometimes led to an overrepresentation of white women in managerial roles.)

Others have also noted how legacy admissions are their own form of affirmative action. A study by the Chronicle of Higher Education reviewed 30 elite universities’ admissions processes and found that a legacy connection gave an applicant a 23.3 percentage point advantage over an applicant without connections. Applicants who were the children of alumni had an average advantage of 45.5 percentage points. And since college student bodies have historically been white, white students have been more likely to benefit from legacy admissions.

The seminal book The Shape of the River by the late William G. Bowen, a former Princeton president, and former Harvard president Derek Bok examined the impact of affirmative action during its first three decades on students who probably benefited, and found that the students had better life outcomes — they were more likely to graduate from college, earn professional degrees, and have higher incomes — than peers who went to less competitive colleges and probably didn’t benefit from affirmative action. For the broader student body, particularly white students of higher socioeconomic status, affirmative action has been proven to foster positive racial attitudes toward marginalized groups, help them develop stronger leadership skills, and make them likelier to engage civically after they graduate.

Affirmative action proponents argue that the programs encourage diversity and continued integration and since certain groups are still grossly underrepresented — Black and Latino students are more underrepresented at selective universities today than 35 years ago — affirmative action is still necessary. Supporters also argue that the programs help redress past injustices such as Jim Crow and segregation.

Opponents claim that affirmative action programs undermine the Constitution’s promise of equality of opportunity. And they claim that making room for an applicant of one race necessarily requires a university to reject a different applicant. Though it’s important to note that post-Grutter affirmative action programs primarily impact who gets admitted from a pool of well-qualified applicants — they do not push unqualified applicants into the pool of admitted students.

If you group all Harvard undergraduate applicants into deciles, for example, Harvard rejects over 85 percent of applicants in the top decile. It does, however, admit over half of Black applicants in this elite cohort, and just under a third of the highest-performing Hispanic students. That does suggest that an exceptional Black or Latino applicant is more likely to be admitted to Harvard than an equally qualified white or Asian student. But it also doesn’t change the fact that anyone Harvard would even consider admitting is exceptional.

Moreover, while Blum and his legal team claim that they are acting in the interest of Asian students, polls show that the majority of Asian people support affirmative action. Higher education scholars have argued that the premise in the Harvard and UNC cases perpetuates harmful “model minority” stereotypes about Asian Americans and disregards the notable socioeconomic differences among various Asian ethnicities. Data shows that affirmative action has helped reduce severe intra-racial disparities among Asian American people.

“I don’t think it’s accidental that [Students for Fair Admissions] decided to go with Asian Americans, although I am curious why they weren’t evidently able to find an Asian American ‘Abigail Fisher’ to serve as a plaintiff,” said Chen. “Asian Americans are sometimes America’s favorite racial minority. We’re the ‘model minority.’ We are said to work hard and play by the rules, and our socioeconomic achievements are used to validate the American dream. We’re a natural fit for anyone who wants to question the legitimacy of affirmative action by arguing that it doesn’t just harm whites but also harms deserving minorities, too.”

Though both the trial court and appellate court in Harvard found no discrimination against Asian students in the school’s race-conscious admissions policy, that doesn’t mean the argument isn’t a popular one, Garces told Vox. It “capitalizes on this idea that if you score perfectly on standardized tests and get perfect grades, why shouldn’t you be admitted to this top university? This idea has taken hold in the public narrative,” she said. It is mostly up to colleges and universities, however, to determine what they believe is meritorious, as long as they don’t use race as a deciding factor.

What affirmative action has done for diversity on campuses

When schools are no longer allowed to use race-based considerations, they experience a pronounced dip in diversity. For example, California banned affirmative action in 1998, and by 2017, the percentage of Black students at the University of California Berkeley was only 3 percent, down markedly from 6 percent in 1980. Another study found that students of color experience a 23 percentage point decline in likelihood of admission to selective public colleges after an affirmative action ban takes effect.

Still, affirmative action has not produced great results for underrepresented students after more than 40 years in effect. A New York Times analysis found that even with affirmative action, Black students were just 6 percent of first-year students at selective elite schools in 2015, though they made up 15 percent of college-age Americans.

Both Harvard University and the University of North Carolina at Chapel Hill want to continue to take race into account, as one factor among many, as they sift through tens of thousands of applications each year. If the Supreme Court rules that the practice is illegal, colleges and universities would need to find new ways to produce diverse student bodies and draw from underrepresented groups.

Research has shown that the alternatives to affirmative action are limited and far less effective than race-conscious policies at fostering diversity. For example, the University of Texas’s “percent plan,” implemented in 1997, grants Texas students who graduate in the top 10 percent of their high school class automatic admission to all state-funded universities; it was found to be unsuccessful. The growth in the share of Latinos was not a result of the plan but a result of an increase in the number of Latino high school graduates in the state. The plan has not been successful in increasing the number of Black students on campus, though the share of Black young Texans has remained constant as the number of white young Texans has drastically declined.

Researchers have also studied whether affirmative action based on socioeconomic status would be a feasible way to achieve racial diversity since Black, Latino, and American Indian families have historically earned less than white and Asian families. But complex simulations of socio-economic affirmative action have found that “at any income level, white students are twice as likely as Black students to attend a highly selective college.” Researchers ultimately included that colorblind frameworks do not seem likely to produce the kind of racial diversity achieved under race-based affirmative action policies.

Proponents ultimately fear that the removal of race from a student’s application, which Students for Fair Admissions is arguing for, would erase an important part of an applicant’s identity. But the Supreme Court is positioned to put an end to the consideration of race. Chief Justice John Roberts famously wrote in the court’s 2007 Parents Involved decision, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The statement has cast a shadow over the future of affirmative action.

“The point of affirmative action in higher education is not to stop discrimination on the basis of race. It’s to improve the quality of education for all students at a school, by helping to diversify the student body,” said Chen. “What might be more appropriate to say is something like this: ‘The way to compose a racially diverse class is to take race into account— until it’s no longer necessary to do so.’”

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