Venk Hariharan, JD Anticipated May 2024
A History of Race-Conscious Admissions in the U.S.
Race-conscious admissions policies were first established in the 1970s, in response to a history of racial discrimination and segregation in the United States. Colloquially referred to as ‘affirmative action’, these policies use race as one of several factors in admissions decisions to promote diversity and address the underrepresentation of minority students in higher education. In 1978, in Regents of the University of California v. Bakke, the Court held that while racial quotas in admissions were unconstitutional, race could be used as a “plus factor” in admissions decisions to promote diversity. Since then, there have been several legal challenges to affirmative action in college admissions. In a pair of sister cases in 2003 (Gratz v. Bollinger and Grutter v. Bollinger), the Court began to refine its decision in Bakke, holding that while a points-based system is unconstitutional where race is not considered on an individualized basis, promoting diversity in higher education was a compelling interest that justified the use of applicant race as one of several factors in the admissions process, if done so in a “narrowly tailored” way. In 2016, in Fisher v. University of Texas, the Court further clarified that colleges and universities could only turn to racial classifications if no race-neutral alternatives existed that could provide a workable means of achieving diversity.
What’s So Compelling About Diversity in Higher Education?
Many of the country’s elite universities and businesses agree that diversity in higher education is critical for producing better outcomes for individuals, both as a student at the university level and as a member of the workforce upon graduation. Diversity fosters an inclusive learning environment that exposes students to a variety of perspectives. This diversity can enrich classroom discussions, broaden students’ understanding of complex issues, and promote critical thinking and creativity. Research supports the observation that engagement with students from a broad cross-section of races and backgrounds has been shown to reduce implicit bias and challenge racial categorizations in a social setting. Additionally, diversity in higher education promotes social justice and equity. Historically marginalized groups, including racial and ethnic minorities, have faced barriers to accessing higher education. Race-conscious admissions policies can help to address these barriers by providing opportunities for underrepresented groups to succeed in college, adding an additional dimension to the robust exchange of ideas among students that prepares them to compete in an increasingly diverse workforce. Lastly, diversity in higher education is also supported by many of the nation’s elite businesses due to its economic benefits. Studies have shown that companies with diverse workforces are more innovative and better able to compete in global markets. This is because teams comprised of diverse collaborators work together more effectively, and generate more innovative results, than comparatively homogenous teams (even homogenous teams with greater ability on an individual basis).
The Affirmative Action Cases Before the Supreme Court
Students for Fair Admissions (SFFA) filed lawsuits against both the University of North Carolina (UNC) and Harvard University (Harvard), alleging that their admissions processes discriminate based on race. SFFA argued that the universities’ use of race in admissions violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Both UNC and Harvard have defended their admissions processes, arguing that they are holistic and consider a range of factors, including race, in a narrowly tailored way to achieve a diverse student body.
Students for Fair Admissions v. President & Fellows of Harvard College
The plaintiffs allege that despite scoring among the highest in objective measurements (such as test scores, grades, and extracurricular activities), Harvard’s inclusion of subjective traits (such as positive personality, likability, courage, kindness and being widely respected) in the admissions process resulted in a 16% reduction in the number of Asian Americans admitted. SFFA argues that this process is effectively an end-run around Title VI of the Civil Rights Act and discriminates based on race. In response, Harvard points to its holistic review process that considers race as one of many factors in its admissions policy. Harvard conducts a highly individualized review of each applicant, and although no acceptance or rejection is based automatically on a variable such as race, many factors that contribute to diversity (including race) are meaningfully considered. Moreover, Harvard also points to the facts that it does not implement racial quotas or racial balancing, and that the percentage of Asian American students admitted has grown from 17% to 21% in a decade, despite Asian Americans representing only about 6% of the U.S. population.
Students for Fair Admissions, Inc. v. University of North Carolina
As part of the university’s training, admissions officers are instructed to consider race and ethnicity as one factor in a holistic, individualized review of each applicant, while reminding them that there are no quotas for specific races. Underrepresented minorities (e.g., African American, Native American, or Hispanic students) may receive a “plus” designation during the application process based on their race or ethnicity.
How Should These Cases Be Decided?
Given the Court’s conservative majority, and its recent willingness to buck stare decisis, the Court may overturn Grutter and Fisher, and prohibit the use of race as a factor in the admissions process. Several members of the Court’s conservative bloc, and the Court’s own precedent, have already hinted that it is time to end of the use of affirmative action in higher education. Chief Justice Roberts, in the Court’s 2007 Parents Involved decision, stated: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Thomas shared a similar sentiment in Grutter v. Bollinger, stating that “The Constitution abhors classifications based on race . . . That constitutional imperative does not change in the face of a ‘faddish theory’ that racial discrimination may produce ‘educational benefits.’” Justice Alito also expressed concern for the gratuitous use of race-conscious admissions policies. Writing in dissent, he questioned whether such policies would allow university administrators to “justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’ without explaining—much less proving—why the discrimination is needed.” While the newer conservative members of the Court have been more enigmatic about the current need for affirmative action policies, the Court’s own precedent has foreshadowed the end of higher education’s compelling interest in promoting diversity. The majority in Grutter (2003) provided a sunset prediction, stating that “[t]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest.”
Most institutions of higher education have either open or close to open admissions policies that do not consider race, and nine states have already banned the use of affirmative action in university admissions. The impact of these bans is readily apparent. In these states, starting in the year prior to a state’s affirmative action ban, the gap between the share of underrepresented students enrolled in college and their representation among that state’s high school graduates increased by 1.1% year-over-year, over a three year period. In other words, race-neutral alternatives have thus far been unable to provide a workable means of achieving diversity in higher education sought by universities and businesses. If the Court rules as expected in the current session and closes the door on affirmative action in higher education, we should expect a reduction in the number of underrepresented minorities entering college, and a corresponding loss of economic benefits in industry.
Despite the Court’s likely ruling, the plaintiffs in each of the pending cases fail to provide evidence that the admissions policies at Harvard and UNC are not sufficiently narrowly tailored to meet the strict scrutiny standard. In Grutter, the Court made it clear that a race-conscious admissions program does not unduly harm nonminority applicants if it ensures that all factors that may contribute to diversity are meaningfully considered (alongside race). In Fisher, the Court further clarified that colleges and universities could only turn to racial classifications if no race-neutral alternatives existed that could provide a workable means of achieving diversity. Neither Harvard’s nor UNC’s admissions policies use race as a determinative factor for admission, but rather as one factor among many. Since promoting diversity represents a compelling interest for the university, and no race-neutral alternatives for achieving racial diversity exist, the race-conscious admissions policies of Harvard and UNC should be upheld.