The End of Affirmative Action

This morning, the U.S. Supreme Court will hear oral argument in two cases challenging the use of race as a factor in college admissions. The defendants in the cases are Harvard University and the University of North Carolina at Chapel Hill. Virtually all constitutional experts, myself included, believe that when the court releases its decisions in spring 2023, it will eliminate affirmative action by a 6-to-2 majority (with Justice Ketanji Brown Jackson recused from participation in the Harvard case). Because Harvard is a private institution and UNC public, that result would ban use of race in admission decisions across the entire spectrum of higher education.

Many of my friends and colleagues in higher education have questions about these cases. Here’s my analysis.

The Legal Context

In Grutter v. Bollinger, a case from 2003, the Supreme Court approved the use of race as a factor in college admission in order to produce a diverse student body. Ordinarily, the court seeks to follow precedent. Here, however, three factors are likely to drive the court to reject its prior ruling.

First, Grutter was decided 5 to 4. Though narrowly decided cases are still considered binding precedent, as a practical matter, the court pays much less deference to 5-to-4 decisions than they do those decided 9 to 0 or 8 to 1.

Second, the court has moved decisively to the right since Grutter was decided in 2003. Most conservative constitutional lawyers and judges believe that granting any benefits or advantages on the basis of race is pernicious and violates the Constitution’s promise of “equal protection” to all citizens. As Chief Justice Roberts wrote in one case, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Conservatives generally believe that use of race as a factor in hiring, contracting or college admissions, even to remedy past discrimination, harms the nation more than it helps. It forces us to see each other as members of racial groups, not as individuals; it stigmatizes persons of color who are admitted; and it runs the risk of creating lasting bitterness and enmity. As Roberts has commented, “[racial] preferences do more harm than good.” Conservatives seek, in the words of Justice Harlan in his famed dissent in Plessy v. Ferguson, a “color-blind” Constitution. Thus, overturning Grutter, like the decision to overturn Roe v. Wade earlier this year, will achieve a major goal of conservative constitutional jurisprudence.

Finally, the Grutter decision itself set a time limit for the continued use of race in admissions. Writing for the majority, Justice Sandra Day O’Connor observed, “Finally, race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Though O’Connor stated after her retirement that she did not intend to set a strict deadline, her statement in Grutter has long been taken, particularly in conservative legal circles, as setting an affirmative action expiration date. Many conservatives believe that in Grutter, the court decided, in effect, that the court would give the nation one generation to remedy past discrimination. After that point, it must move toward a race-blind legal regime. For many conservatives, that time has come.

Liberal and progressive lawyers and professors generally disagree with these claims. They argue that Grutter remains binding law, despite the 5-to-4 vote; that the Grutter court never meant to set a time limit, and even if it did, that deadline still has six more years to run; and that affirmative action remains necessary to build diverse student bodies, which are essential to quality education. I suspect, however, that those arguments will not prevail. Three justices—Roberts, Alito and Thomas—have gone on record as opposing affirmative action in higher education. I expect, based on their general judicial philosophies, that Gorsuch, Coney Barrett and Kavanaugh will agree. Even if Roberts gets only two of these three votes, affirmative action will be a thing of the past in higher education admissions.

What Does the Public Think?

Public polls indicate strong (though not overwhelming) support for ending the use of race as a factor in college admissions. A very recent Washington Post poll, for example, found that 63 percent of Americans “support the Supreme Court banning colleges and universities from considering a student’s race and ethnicity when making decisions about student admissions.” Sixty-six percent of whites, 65 percent of Asians and Pacific Islanders, and 60 percent of Latinos support that position. African Americans are deeply divided: 53 percent of African Americans support use of race in admissions, and 47 percent oppose it.

What Will the Impact Be?

Many higher education institutions have open or close to open admissions, taking virtually all applicants. For these schools, the decision will have no or little impact. In addition, nine states, including California, Florida and Michigan, already ban affirmative action in public higher education. In these states, a ban would continue the status quo at public colleges and universities but change current practice for selective private institutions. In the remaining 41 states, the impact on selective schools would be immense, radically altering admission practices.

Demographically, the impact of a ban on affirmative action on student bodies at selective and highly selective schools will be significant and profound. Because nine states have already banned affirmative action at their public universities, some as many as 15 years ago, we have clear data. At the University of Michigan, for example, Black undergraduate enrollment declined from 7 percent in 2006 to 4 percent in 2021, even though the total percentage of college-age African Americans in Michigan increased from 16 percent to 19 percent. The impact will be less pronounced at less selective institutions, but probably even greater in selective graduate programs. A comprehensive study of medical school admissions in states that have banned affirmative action found, for example, “devastating impact,” with enrollment by students from underrepresented groups declining by one-third.

What Steps Can Institutions Take in Response?

If the court bans affirmative action, what steps can institutions take in response if they wish, as most do, to continue to enroll diverse student bodies? Because these bans began at the state level more than a decade ago, best practices have emerged. First, schools can eliminate mandatory testing for admission, since Black, Latino and Native American students tend, on average, to score lower than white and Asian American students. Second, institutions can increase recruiting efforts in geographic areas or particular high schools with large Black, Latino and Native American student populations. Third, schools can still provide affirmative action based on nonracial factors, such as income. By seeking to admit more lower-income students, they will undoubtedly boost their minority enrollments.

The good news? Based on the track records of states like California and Michigan, taking these steps will likely offset some of the impact of a ban on affirmative action. The bad news? These measures are very costly and will probably not produce student bodies as diverse as those that would likely enroll were affirmative action continued.

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