What the Supreme Court’s Affirmative Action Ban Means for College Admissions

Race is no longer a factor that can be intentionally considered in the college admissions process.

By Sarah Wood | Thursday June 29, 2023, at 3:32pm

Whether colleges and universities should consider race or ethnicity as part of the admissions process has been widely debated in higher education for decades.

Now, the fate of affirmative action has officially been decided, with the U.S. Supreme Court ruling against the use of race in college admissions – deeming the admissions programs at both Harvard University in Massachusetts and the University of North Carolina at Chapel Hill unconstitutional.

The U.S. Supreme Court justices originally heard these challenges to race-conscious admissions in October in two cases: Students for Fair Admissions v. President and Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina. The lawsuits argued that admissions policies taking race into consideration discriminate against Asian American applicants and, in the case of UNC, also white students.

Experts say the June 29 ruling will have far-reaching implications for diversity on college campuses and in the workforce pipeline.

“Fifty years since the passage of civil rights legislation has not been nearly enough to address or correct more than 350 years of discriminatory practices intended to keep people of color away from higher education institutions or, starting in the 19th century, severely limit their prospects of increasing their educational attainment,” Mildred García, president of the American Association of State Colleges and Universities, said in a statement.

Here’s some history on race-conscious admissions and what they could mean for colleges and applicants going forward.

What Is Affirmative Action?

In a higher education context, affirmative action – which stemmed from the civil rights movement in the 1960s – is the practice of considering student background characteristics such as race as a factor in deciding whether to admit an applicant.

Schools engaging in affirmative action are more often selective colleges, recognizing there is unequal access to education opportunities in the U.S., says Katharine Meyer, a fellow in the governance studies program for the Brown Center on Education Policy at the Brookings Institution.

“Students’ exposure to high-quality schools and the kind of preparation necessary to gain admission is unequally distributed across ZIP codes,” she says. “So affirmative action is one way to contextualize the opportunities that a student had during their K-12 experience and the disadvantages in access to high-quality teachers and high-quality advisers that they may have had during high school.”

How Affirmative Action Has Played a Role in College Admissions

The use of racial quotas, in which colleges reserve a designated number of spots for students based on their race and admit them exclusively on that basis, was ruled unconstitutional in the 1978 Supreme Court case Regents of the University of California v. Bakke. The court determined that such practices violate the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment.

Until now, the high court has consistently ruled that race may be considered along with other factors in the admissions process based on a “compelling interest” – the educational benefits of fostering a diverse student body on college campuses. College admissions officers say they review applications through a holistic process, also paying attention to academic records, high school course rigor, extracurricular activities, essays and letters of recommendation.

“Particularly at these very selective colleges, like UNC and Harvard, among the pool of highly accomplished young people, (race) can be something that kind of tips someone into the admit pile,” says Natasha Warikoo, Lenore Stern Professor in the Humanities and Social Sciences in the Department of Sociology at Tufts University in Massachusetts.

There’s long been public skepticism of these policies, however. In a 2019 Pew Research Center survey, 73% of American adults said colleges should not consider race or ethnicity as part of a college’s admissions decisions. Four years later, American public opinion is more mixed, with half of adults saying race should not be considered and about one-third saying they approve of affirmative action policies, according to a 2023 Pew survey. About 16% say they’re not sure.

Critics have argued that race-conscious admissions amounts to racial discrimination, harming white and Asian American students. Many conservatives against affirmative action have pointed to former Supreme Court Justice Sandra Day O’Connor’s statement in the 2003 Grutter v. Bollinger case ruling involving the University of Michigan—Ann Arbor Law School: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In the court’s current opinion, Justice Neil M. Gorsuch concurred that “Harvard and UNC choose to treat some students worse than others in part because of race. To suggest otherwise – or to cling to the fact that the schools do not always say the quiet part aloud – is to deny reality.”

“Today, the United States Supreme Court correctly called discrimination what it is – wrong, regardless of the skin color of the intended beneficiary,” Pam Bondi, chair of the Constitutional Litigation Partnership and co-chair of the Center for Law and Justice at the America First Policy Institute, wrote in a statement.

But many in the higher education community also denounced the decision. “Today’s decision will have negative consequences for all Americans and diminish our society’s economic and social development,” García of the American Association of State Colleges and Universities said in a statement. “The civil rights movement inspired the development of this life-altering policy that has supported all students since the late 1960s. We must not lose the important ground that has been gained. We must not revert to an inequitable society.”

What Does This Ban Mean for College Admissions?

The Supreme Court has heard several race-conscious admissions cases since Bakke, including the most recent involving Harvard and UNC. Both of these cases were spearheaded by Edward Blum, a conservative legal activist who opposes the consideration of race and ethnicity in the U.S. and who helped bring a similar challenge to the Supreme Court in 2016 in Fisher v. University of Texas, which was unsuccessful.

Prior to this ruling, affirmative action was banned at public colleges and universities in nine states. California, for instance, voted to ban affirmative action more than 25 years ago. Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington also previously banned the practice.

In an attempt to ensure diversity on campus without affirmative action, some colleges chose to automatically admit a certain percentage – often the top 10% – of a high school’s graduating class. “I think these policies do increase the racial and socioeconomic diversity of particularly the flagship institutions in a state,” Meyer says. “But when comparing them against the decline in socioeconomic and racial diversity that happens after affirmative action is banned in a state, they aren’t able to overcome the loss in diversity from banning affirmative action.”

For instance, a 2020 study – which examined 19 public universities in states that had affirmative action bans starting around the mid-1990s – found that the number of Black, Hispanic and Native American students enrolled at the nine surveyed flagship universities was 11.2 percentage points less than the share of high school graduates from these demographic groups in the states where the schools are located. This gap rose to 13.9 percentage points immediately after the ban and, by 2015, to 14.3 percentage points.

The Supreme Court decision against Harvard and UNC will be “pretty devastating in terms of higher education,” Warikoo says. “I think we will start to see a decline in representation at a lot of different levels as a result.”

Research shows that diversity benefits all students. A 2019 study by the American Council on Education, for example, found that racial and ethnic diversity in education and the workforce leads to greater productivity, innovation and cultural competency.

College is an opportunity for students to encounter opposing viewpoints and hear from people who are different from them, says Christopher Rim, CEO and founder of Command Education, an admissions consulting company. “You want a diverse opinion. You want people who have different experiences than you. I think that’s going to be lost.”

But “at the same time, you want to be able to get into a school because of your merit, not because of your race,” he adds. “There are too many students who are ‘similar’ or have very similar academic and extracurricular activities. So there’s no way to really say what the right decision is. It’s very complicated. But the decision was made and now we have to figure out how we’re going to move forward from here.”

How Colleges May Respond to the Ban

As a response to the court’s decision, experts predict that colleges may increase outreach in communities of color and rural areas.

Towson University in Maryland – which does not use race as a factor in its admissions decisions – has implemented other strategies over the years to enroll and retain more students of color. This includes going test-optional; focusing their outreach in certain areas of the state, like Baltimore; spending more than 50% of their aid on need-based grants; and having resources in place to help with the college transition, says Boyd Bradshaw, the school’s vice president for enrollment management. As of spring 2023, 46% of students are white, 28% are Black, 9% are Hispanic and 6% are Asian.

“We do benefit from being in the state of Maryland, which is also a very diverse state,” he says. “And so we have seen tremendous increases in diverse student populations. We believe we have the mechanisms in place currently in order to be successful.”

Schools may also reevaluate legacy admissions policies, which give preference to the children of alumni and donors, and therefore advantage students who already come from advantaged backgrounds. “I think we were already started seeing a downward trend with (legacy admissions) to begin with, just over the past three to four years,” says Rim. “But with this ruling, legacy admissions is really going to start not having much of a factor in admissions.”

And some schools may reconsider athletic recruiting, which tends to favor white applicants, particularly at elite schools.

However, the “court leaves a considerable gray area when it comes to understanding race in the context of a student’s life,” Meyer says.

“They note applicants might reference race in their essays and colleges could consider students experience of discrimination in their holistic review of essays, but that such consideration must be done at an individual level,” she wrote in an email. “This ambiguity likely leaves room for future legal challenges around exactly how colleges strike this delicate balance.”

Originally published on U.S.News & World Report on June 29, 2023