The Harvard Case: We Have No Anti-Discrimination Law on Race-Concise Admissions, and Where Do We Stand?
Chief Justice Roberts explicitly exempts military academies from this ban on race-conscious admissions “in light of the potentially distinct interests” they may present.
But Liliana Garces, a professor of education at the University of Texas at Austin, maintains that Thursday’s opinion is limited to race in college admissions — and nothing else. “The only legal issue that was before the court was the consideration of race in admissions.”
The Harvard case has a particular resonance because the school has a sordid history of imposing Jewish quotas in the 1920s, ’30s and ’40s to limit the number of Jewish students on campus. SFFA’s lawyers have been able to claim that at Harvard, Asians are the new Jews. There was a full-sized trial that lasted more than two weeks and involved a lot of documents and emails. And when the dust settled, both the district court judge and the court of appeals found “no evidence” of discrimination against Asian Americans — a fact that Harvard’s lawyer, Seth Waxman, repeatedly emphasized on Monday.
The Harvard case hit a variety of nerves for the justices. Five of them have deep connections to the school. During the litigation, Jackson sat on the Harvard Board of Overseers, which led to her being removed from the case. She was one of four justices who either attended Harvard College or Harvard Law School. The justices worked at the law school together, with Justice Kagan serving as dean for six years and Justice Kavanaugh teaching there for two years.
Two cases are similar. The affirmative action program is being tested to see whether it violates the 14th Amendment’s guarantee of equal protection of the law. Harvard is covered by anti-discrimination laws because it accepts federal money for a wide variety of programs.
We ended up with a system where rich kids dominate. There was research done in 2017 by an economist, Raj Chetty, who found that students from families in the top 1 percent of earners were 77 times as likely as poor students to be admitted to the Ivy League. There are more children from families that are in the top 1 percent when you go to school after school.
So in the 1950s, Harvard University decided they weren’t just going to accept the sons of the elite. They needed to take in people who were smarter and from a bigger swath of society. So they decided: We’re going to take G.P.A. much more seriously, and we’re going to take the SAT test much more seriously, and everybody will be able to get in as long as they qualify.
Affirmative action in higher education has been abolished by the Supreme Court in a ruling that raises questions about the future of employer-run initiatives and programs that consider race.
And yet despite the success of affirmative action programs in raising minority enrollment, or more likely because of it, the pushback was immediate. A man who was turned down for a medical degree by the University of California, Davis, filed a lawsuit because he said he was the victim of discrimination. In a complicated split opinion in the 1978 Bakke case, the Supreme Court allowed race to be considered in college admissions, but only for the purpose of increasing diversity on campus, not as a way to alleviate the long-term effects of discrimination.
After a brief honeymoon of public support, affirmative action was met with a powerful backlash, and the policy has been under attack ever since. Decades of lawsuits and legislation have chipped away at the use of racial preferences. The Supreme Court made a decision in which they consigned them to the grave.
The intensity and duration of the attack is sad confirmation that many Americans remain unwilling to reckon with the barbarity of our racial history. The progress for Black people has been met with a backlash. After Reconstruction, white people of the South created a new mythical history of slavery, the Civil War and Reconstruction. This insistence on denying history continues to this day. It is against the law in a growing number of conservative states to tell the truth about racial oppression, with dismissal and even jail for defiant teachers.
As a tutor, I often heard that getting into an elite college needed to be done in a certain way. For these students, the college admissions process had been reduced to performance art, in which they were tasked with either minimizing or maximizing their identity in exchange for the reward of a proverbial thick envelope from their dream school. It was a game I was soon compelled to play myself: When I was a candidate for a professor’s job, I was unsure about whether to talk about my race in ways that would honor my heritage and make me a good fit for the job. It felt like cheating to check the box and like self-sabotage not to.
Can race be used in college admissions? A Californian high school student asks why black and Latino students are less likely to succeed in higher education
“However well-intentioned” the policies at UNC and Harvard were, Roberts wrote, the universities failed to use them within the confines of the narrow restrictions that previous court rulings had allowed.
There are nearly 4,000 colleges and universities in the U.S., and only a small portion — slightly more than 200 — have highly selective admissions, where fewer than 50% of applicants get in. The ruling on the race-conscious admissions process could make a difference in over 200 schools.
In the simulations, removing race and relying on different combinations of high school grades, test scores, or social-economic indicators did not yield more ethnically diverse classes.
“It boils down to: The more information that you are able to consider about the educational opportunities and disadvantages that an individual has had in their life, the better you as an admissions officer are going to be at understanding who is going to be a qualified applicant.”
Some research shows that students who are admitted to highlyselective colleges with low grades and scores are just as likely to succeed as other students.
In 1996, California voters approved Proposition 209, an affirmative action ban at public universities in the state. Before the ban, UC Berkeley and UCLA were roughly representative of the California high school graduate population who were eligible for enrollment at universities, according to Zachary Bleemer, an economist at Princeton University.
She wonders if the program to increase the number of Black doctors with support to get into medical school will be challenged in the future.
Still, the California schools are unable to meet their diversity goals systemwide. Chang says his school is not where it wants to be. It still enrolls far fewer Black and Latino students than their share of California high school graduates — a problem it didn’t have before the affirmative action ban.
OiYan Poon, a visiting education professor at the University of Maryland, College Park, pointed to the Harvard case as an example of why race should not be used in admissions.
Baker says that it tells him there are some paths forward. “But are those pathways forward the most effective ways of trying to achieve more racial equity within college admissions? No.
After California banned race-conscious admissions in 1996, the proportion of Black and Latino students at UCLA fell dramatically. Only 96 Black students joined the freshman class of over 5000 in ten years. They became known as the “Infamous 96.”
“Black and Hispanic students saw substantially poorer long-run labor market prospects as a result of losing access to these very selective universities,” Bleemer told NPR. There was no gain in long-run outcomes for the white and asian students who took their place.
There are other ideas to promote campus diversity, such as the University of Texas at Austin automatically admitting Texas high school students who graduate in the top 6% of their class. Lotteries have also been proposed, where eligible students with high qualifications would be randomly selected for acceptance.
The last time the court ruled on affirmative action was a decade ago. The court ruled in Fisher that race could be a factor in admissions.
In an amicus brief sent to the Supreme Court in support of Harvard and UNC’s race-based admissions programs, University of California chancellors said that years of crafting alternative race-neutral policies have fallen short.
The University of Oklahoma remains just as diverse as it was before Oklahoma banned affirmative action in 2012 as a result of the brief filed by the Attorney General of Oklahoma. The university’s main campus in Norman currently has a U.S. undergraduate student population that is about 60% white and 5% Black.
In the absence of race in the admissions process, Kelly Slay, an assistant professor at Vanderbilt University who studies affirmative action, expects to see colleges increase targeted recruitment, expand financial aid including free-college programs, and go test-optional, in an effort to maintain their ethnic and racial diversity.
But, she says, “we don’t have anything that works as effectively at producing and enhancing racial diversity as race-conscious affirmative action. We have over 20 years of data and research on that.”
Why blacks and Hispanics aren’t the same at universities: President Trump’s 6-3 ruling in the lower court ruling on race-conscious admission policies
The 6-3 ruling, split on ideological lines, reflects the court’s rightward turn under Republican President Donald Trump, who appointed three justices to the nine-person bench.
This decision will not only have sweeping effects on the composition of student bodies, but it could also affect the make-up of staff, says Julie Park, a researcher at the University of Maryland in College Park, whose work focuses on racial equality in higher education. “For better or for worse, these elite or name-brand institutions are a big part of the pathway into the professoriate,” Park says.
A study was published last September that said just 20% of US institutions that grant PhDs gave 80% of tenure-track faculty members. The list does not have any historically Black colleges and universities or Hispanic-serving institutions.
Park thinks that future generations of scientists, who are trained at universities, might not be the same if race-conscious admissions are not in place. According to the report, black and Hispanic workers make up only 9% and 8% of the US’s total workforce, which is roughly equal to the country’s total population. Black people make up around 14 percent of the US population, and Hispanic people make up 19 percent. Park says that the sciences haven’t been doing well, even with race-conscious admission policies in place.
The problem is that, as a matter of history, it’s not true. The 14th Amendment was passed after the Civil War and intended to give rise to race conscious legislation, as Justice Sotomayor noted on Thursday. The same Congress that passed the amendment enacted several such laws, including the Freedmen’s Bureau Acts, which helped former slaves secure housing, food, jobs and education.
The bureau was an essential measure to correct the harm that slavery inflicted on Black Americans. The first affirmative-action programs, a century later, had the same goal, only then it was necessary to address the decades of state-sanctioned discrimination against Black people that followed Reconstruction, and that continued to impose unique and specific hurdles to their ability to fully join American society. In 1965, President Johnson said that a person who has been hobbled for a long while by chains cannot be brought up to the starting line of a race and told they are free to compete.
Gabrielle Starr, president of Pomona College, a small Southern California school that wasn’t subject to the state ban, fears the selective, private university will lose its racial diversity under the nationwide affirmative action ban.
The UC system stopped requiring standardized test scores as an admission requirement in 2020.
The epoch of justice: how the US Supreme Court will rule against DEI-style policies for higher-education students, especially black and Latino students
And as the nation’s highest court has grown more conservative in recent years, court-watchers wondered if it would reverse decades-old precedents allowing affirmative action.
As college admissions offices prepare to tailor their policies to the Supreme Court ruling, California offers lessons on what may be in store for the rest of the country.
“If you follow them into the labor market, for the subsequent 15 or 20 years, they’re earning about 5% lower wages than they would have earned if they’d had access to more selective universities under affirmative action,” Bleemer said.
The ban has in fact acted as a deterrent to prospective Black and Latino students, Bleemer said. The study found that high-performing minority students were discouraged from applying to schools that had more minority students.
More than 80% of major corporations and businesses filed briefs with the Supreme Court in support of policies that increase workforce diversity and improve company performance.
Apple, General Electric, Google and Johnson & Johnson are just some of the companies that have written brief about the advantages of having experience in a diverse university environment.
With the increasing number of members of Generation Z entering the workforce, it is important that race-conscious programs are maintained.
The Supreme Court is in a rarefied place, which is where most of us don’t live, so business leaders need to figure out a way to make this work. “And that’s just the reality of it.”
“The current structure of the workforce in corporate America suggests that there are tons of gaps between the races and it is possible to fill those gaps with the help of diversity, equity and inclusion work,” according to her statement.
But Tillery doesn’t expect any changes to DEI initiatives overnight. The programs fall under Title VII of the Civil Rights Act, and that companies can maintain their programs by changing their language.
“This ruling means we can strike hard legally in our courts now and win major victories. Miller said that now was the time to wage lawfare against the DEI colossus.
Conservatives have been messaging away from DEI-style programs for the last few years. America First Legal, a nonprofit run by Stephen Miller that is focused on doing away with race-focused policies, is among several right-leaning groups calling for further action.
The Supreme Court’s ruling in the Students for Fair Admissions case is expected to lead to a shift of focus by the conservative groups that supported the lawsuit.
“I already think that there are going to be some real repercussions,” said Alvin Tillery, a political science professor at Northwestern University, who runs a consulting firm that works with organizations and companies, including Google and Abbott, on DEI-related programs.
Though the opinion focuses on higher education, some legal experts say it could lead to changes in commonplace workplace initiatives like diversity, equity and inclusion (DEI) programs and environmental, social and governance commitments.