Affirmative action as we know it is gone. In a 6-3 ruling today in the case of Students for Fair Admissions v. Harvard and a companion lawsuit against the University of North Carolina at Chapel Hill, the conservative majority on the Supreme Court discarded decades of legal precedent by ruling that colleges may no longer consider race when admitting students.
The Court was unmoved by the near-unanimous belief among people who run colleges that student diversity is essential for education, or by the many barriers that continue to stand between students of color and college degrees. Because nearly all private colleges, including Harvard, receive federal funding, they are now subject to the court’s brand-new interpretation of the 14th Amendment’s ban on racial discrimination.
That creates an enormous challenge for college leaders and admissions staff. The higher education institutions affected by this ruling will almost certainly not relent on their stated commitment to recruiting a diverse student body. But they’ll need to find new ways of making good on that commitment with methods that (they hope) won’t run afoul of the Supreme Court.
History suggests it will be difficult to fully replace the strategies that the Court just declared illegal, particularly at first. That’s especially true given that many forms of affirmative action for the white and wealthy still stand: The Ivy League crew team recruit with mediocre grades won’t be touched by this decision.
A diverse higher ed landscape is still possible after SFFA v. Harvard, but will colleges, especially of the elite variety, be willing to upend the old ways of doing things and commit to new investments to achieve it?
Who will be affected?
SFFA v. Harvard goes into effect in a few months, when early-decision applications start arriving for the entering Class of 2028. Colleges have already admitted most of the students who will matriculate this fall. The ruling doesn’t affect them or those who are still finalizing their choices.
Here’s another thing to understand: Affirmative action has never been a dominant force in admissions. The college destination of the large majority of students will be unaffected by its demise.
Of the roughly 1,600 colleges that report admissions statistics to the federal government, only 350 admit 60 percent of applicants or less, and those include a dozen large universities in states that have already banned the use of race by public institutions when considering applications. Fewer than 100 colleges have admission rates below 30 percent, and they only enroll about 10 percent of all students. And most students of color who attend selective colleges would likely have been admitted to the same college or somewhere similar without racial preferences.
So we’re really talking about the elite tier of schools in the US — a relatively small swath. But it’s a consequential swath: Elite diplomas are an irreplaceable credential for entry into the halls of influence and wealth.
The corporate leaders who employ us and politicians who represent us are disproportionately selective college graduates, as are the barons of media, finance, and technology. Harvard and Yale educate eight hundredths of 1 percent of American undergraduates and gave us 89 percent of the current Supreme Court.
Black and Hispanic students in particular have historically been denied an equal opportunity to earn valuable college degrees. If history is a guide, SFFA v. Harvard will immediately make that problem worse.
What will happen next?
This isn’t the first time some colleges have been legally prohibited from using race in admissions. Nine states have passed laws or referendums that bar affirmative action in public universities. Often, the results have been the same: a swift decline in admissions rates for Black and Hispanic students, with damaging long-term consequences.
California was the first and largest state to ban affirmative action, in 1996. Black and Hispanic representation at the flagship Berkeley and UCLA campuses immediately dropped.
But as a recent study found, the total damage was much larger and long-lasting. The ban cascaded down through California’s public higher education system, altering admissions at less-exclusive institutions and knocking some students out of the system altogether.
Some affirmative action opponents had theorized that this would actually be a good thing because of the so-called “mismatch hypothesis,” which supposes that students are harmed by admission to colleges where they can’t keep up academically. Ending affirmative action would mean they would end up going to colleges appropriate to their achievement level and would consequently thrive there and beyond, or so the thinking went.
The California study, which examined the entire population of people who applied to the University of California over nearly two decades, totally demolished this idea. Ending racial preferences, it turned out, was nothing but bad for Black and Hispanic students. They were less likely to finish college, major in science and engineering, or go to graduate school. Hispanic students in particular were shut out of high-earning careers.
That’s because selective colleges also tend to be rich colleges, with unmatched resources to help students learn, graduate, and connect to the social and employment networks that determine success. The end of affirmative action in California basically closed off those networks for many students of color.
The results in Michigan, which banned affirmative action in 2006, were similar. Despite extensive recruitment efforts, Black enrollment at the flagship University of Michigan declined from 7 percent in 2006 to less than 4 percent in 2021, even as the Black college-age population in the state increased. Hispanic enrollment grew in Michigan (and California) but that was likely the result of a significant increase in the overall size of the Hispanic population.
The damage will also be felt by students who don’t directly benefit from racial preferences, in the form of increasingly homogenous student bodies and diminished educational experiences. A fragmented nation that provides young people with woefully few opportunities to build authentic relationships with people from different backgrounds will have fewer still. And it’s unclear whether SFFA v. Harvard will ultimately reduce the often-justified sense among many Asian Americans that they are penalized by their racial and ethnic identity when applying to top schools.
What can colleges do?
Fortunately, colleges have options to maintain the racial diversity of their student bodies, even under the strictures of SFFA. Much will depend on their creativity and commitment, and how much they’re willing to back their ideals with cold, hard cash.
To start, colleges will need to communicate what the Supreme Court’s ruling does and doesn’t mean.
Among the many sobering findings in the California study was a decline in highly qualified Black and Hispanic applicants to the UC system. In other words, the publicity surrounding the ban may have mistakenly convinced some students they shouldn’t bother to apply.
The decision may also prompt more colleges to implement “test-optional” policies of not requiring SAT and ACT scores for admission, a practice that was widely adopted during the pandemic and would likely benefit Black and Hispanic students with lower test scores but strong high school grades.
While the Supreme Court has barred the direct consideration of race, colleges can still legally consider other factors that have the effect of increasing racial and ethnic diversity. Texas, for example, enacted a well-known “Top 10 Percent Plan” in 1997 that guarantees the top 10th of every high school’s graduating class admission to the University of Texas.
Since some Texas school districts have very high concentrations of Black and Hispanic students, this effectively increased access to selective universities like UT-Austin, which admits so many students this way that it had to narrow its criteria to the top 6 percent.
Percent plans are a start. But one study found they only bring back a fifth of the students lost to an affirmative action ban. They also depend, ironically, on states having a significant number of racially segregated school districts, many of which have roots in racist “redlining” policies and other forms of discrimination. Colleges will have to do more.
Colleges can also give preference to low-income students. Since centuries of structural racism have left Black and Hispanic households with less income and wealth than their white counterparts, class preferences would increase racial diversity without formally considering race. This is the hoped-for outcome proposed by Richard Kahlenberg, a liberal scholar who nonetheless served as an expert witness for the plaintiffs in SFFA v. Harvard.
Class-based preferences, Kahlenberg notes, are far more popular among the general public than policies centered on race. He believes that wealthy Black and Hispanic students, who compose a significant percentage of students at universities like Harvard, would be replaced by more economically needy students of color.
“I’ve long argued a conservative decision on race will yield a liberal public policy result,” Kahlenberg says.
Colleges could also give a boost to students from certain places. Harvard already does this with an admissions bump for residents of so-called “Sparse Country” states, predominantly rural areas in the West and Great Plains whose residents happen to be overwhelmingly white.
Colleges could target metropolitan areas, cities, or even neighborhoods with large non-white populations. In other words, like the percent plans, such an approach would leverage America’s shameful history of racialized housing discrimination to get around our new, judicially mandated prohibition against helping people who continue to suffer from its effects.
But geographic plans may also cross the line the Supreme Court drew prohibiting policies that act as racial preferences in all but name, which could spur government investigations and more litigation.
In the majority opinion, Chief Justice Roberts wrote, “Universities may not simply establish through application essays or other means the regime we hold unlawful today.” And low-income students recruited through class-based affirmative action have less money to pay tuition. Harvard, with a $51 billion endowment, can afford to pay their bills. The University of North Carolina at Chapel Hill, the other defendant in the SFFA decision, has an endowment one-tenth that size and more than double the student body — and it’s still richer than many selective schools.
A signal moment in the aftermath of SFFA will come next spring, when Harvard announces the racial/ethnic composition of its graduating Class of 2028. Harvard may, through great effort and expense, be able to legally recreate the Class 2027’s mix of 15 percent African American/Black, 11 percent Latinx, and 3 percent Native American and Native Hawaiian students. But Harvard can take on more low-income students and build out the kind of recruitment operation a school needs to diversify the student body in a post-SFFA world. Other selective colleges that lack Harvard’s billions might not be able to do the same.
And even for Harvard, getting there might require heavy expenditure of a currency that’s even more valuable to elite colleges than money: social prestige.
Ending affirmative action for white people
The SFFA decision left a range of admissions preferences that primarily benefit white people untouched. They include legacy admissions, bumps for the children of faculty, athletic recruitment, and the less formal but widely acknowledged preference for the underqualified children of people who are famous, powerful, or make enormous financial contributions, a.k.a. “the Jared Kushner rule.”
For a Kahlenberg-style class-based affirmative action plan to work, Harvard can’t just increase preferences for low-income students. It also has to decrease preferences for legacies and the rich.
Harvard is among a small handful of “need-blind” colleges and universities that don’t penalize students who can’t afford to pay full tuition. It also offers generous aid to those who can’t afford a $59,000 tuition bill. In 2010, Harvard had, by one estimate, 14 times more students from the top 20 percent of household income than from the bottom 20 percent. It is not wealth-, fame-, or status-blind.
Large parts of the American power elite are nominally sympathetic to the virtues of race-conscious college admissions and also deeply committed to the cause of getting their own children into an Ivy League or similar institution. They won’t go down without a fight.
And that’s before addressing the most powerful admissions preference of all: athletics. Harvard found that its preference for top athletes is nearly three times stronger than the boost for legacies and Black applicants, and more than six times the preference for students of low or modest income. Remember the “Operation Varsity Blues” scandal that involved wealthy parents bribing college sports coaches to pretend their children were great athletes? Top colleges will all but ignore their academic standards for people who are good at hitting a ball with a racket.
Duke University economist Peter Arcidiacono did most of the number-crunching for the plaintiffs in SFFA. “Going into this, I thought what I’d find going on with legacies is more disturbing than with athletics, but that’s not the case,” he says. “If you eliminate athletic preferences at Harvard, white admission rates go down, Black admission rates stay the same, and Hispanic and Asian rates go up. Over 16 percent of white admits are athletes at Harvard, which is significantly higher than for Black students.”
To increase racial diversity, colleges could eliminate preferences for expensive niche sports, like fencing and squash, that are mostly played by wealthy white people. Says Arcidiacono, “It seems crazy to me to have such massive advantages for people on the sailing team.”
The Supreme Court has undoubtedly made it more difficult for selective colleges to build undergraduate classes that reflect the whole American community, or to compensate for the structural racism that still keeps many students down. It would be naive to think that the damage wrought by the SFFA decision can be entirely avoided.
But the end of affirmative action doesn’t have to mean the end of campus diversity. There is a big difference between doing nothing to blunt the Court’s decision and adopting the many strategies that some colleges have already pioneered. In the coming years, we’ll find out which colleges are willing to spend what it takes to make good on their lofty ideals.