A Synopsis of the Recent Supreme Court Decision Overruling Affirmative Action Precedent
“It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education…We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
The consideration of race in the college admissions process was first challenged in Regents of Univ. of Cal. v. Bakke in 1978. In this landmark case, Justice Powell’s opinion held that the university’s special admissions program was not allowed, but race could be one of a number of factors considered by a school in the application process. Lower courts struggled to interpret Justice Powell’s opinion in Bakke until Grutter v. Bollinger, which held race could be considered in student admissions to University of Michigan Law School. Justice O’Connor’s opinion in this case solidified affirmative action as a constitutional means of accepting students into universities factoring in race during the application process. More recently, the nonprofit organization, Students for Fair Admissions, challenged both Harvard and the University of North Carolina’s (UNC) admissions processes. These cases were later combined due to the same issue being at the heart of both cases, questioning the institutions’ use of race as a factor in their admission of students.
I. Majority and Concurring Opinions
On June 29, 2023, the Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, overturning years of precedent and holding that the considerations of race in the college admissions process is unconstitutional. In the majority opinion, Chief Justice Roberts stated, “The time for making distinctions based on race has passed. Brown… ‘declar[ed] the fundamental principle that racial discrimination in public education is unconstitutional.'”
Both Harvard and UNC stated similar compelling reasons why race should be a consideration in the admissions process. Listing interests such as training future leaders, preparing graduates to adapt to a pluralistic society, better educating through diversity, producing new knowledge stemming from diverse outlooks, and enhancing appreciation, respect, and empathy across racial understanding, Chief Justice Roberts wrote that these “commendable goals” are not sufficiently coherent for purposes of analyzing through strict scrutiny.
The Court reasoned that the goals set by the universities were immeasurable, meaning there is no way of knowing when or if they have been reached. The Court illustrated this point by asking how many fewer leaders Harvard would create or how much poorer the education at Harvard would be without racial preferences. Chief Justice Roberts stated that “The interests that respondents seek, though plainly worthy, are inescapably imponderable.”
Perhaps the Court’s strongest argument is the decline in Asian-American admissions since the adoption of race-conscious admissions. Leading to an 11.1% decrease in the number of Asian-Americans admitted. For this particular group of prospective students, race has become a negative factor in their chances of getting into Harvard. Chief Justice Roberts wrote, “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined the majority opinion with Justices Thomas, Gorsuch, and Kavanaugh writing separate concurring opinions. Justice Thomas harped on the Court’s previous “misinterpretation” of the Reconstruction Amendments, comparing slavery to the present issue of college admissions.
II. Dissenting Opinions
Justice Sotomayor and Justice Jackson both wrote separate dissenting opinions that were joined by Justice Kagan. Justice Sotomayor prominently stated that, “Ignoring race will not equalize a society that is racially unequal…equality requires acknowledgment of inequality.” Instead of enlisting the term “race-based,” as the majority does, she used “holistic” to describe the admissions processes at Harvard and UNC. She critiqued the majority’s measurability requirement, stating that it is of the Court’s own creation to avoid public accountability for its choice to overrule affirmative action. She also pointed out how the Court has recognized several other interests that are equally or even more intangible as compelling than the goals of Harvard and UNC in implementing race into the admissions process.
Justice Jackson used a metaphor to illustrate her main point in her dissent. She compares a white seventh generation UNC graduate to a black first generation UNC graduate. Profoundly, she stated, “It is hardly John’s fault that he is the seventh generation to graduate from UNC. UNC should permit him to honor that legacy. Neither, however, was it James (or his family’s) fault that he would be the first. And UNC ought to be able to consider why.” Reiterating that race is not required to be disclosed, she mentioned that unique hobbies or interests are also not required to be disclosed. But, the admissions boards holistically keep all of these factors in mind when determining which applicants would make the best fits for their incoming freshmen classes.
III. The Admissions Processes
Affirmative action has always been a highly contentious issue. Although both sides appear to desire the same thing–college campuses full of qualified and exceptional thinkers–each side’s path to achieve this varies significantly in theory. But, in practice, the process of choosing candidates does not need to be so complicated for both sides of the argument to be appeased. As mentioned in Justice Jackson’s dissent, noting your race is not even a requirement in the admissions process.
Looking at Harvard’s and UNC’s processes of admitting students, their systems are virtually the same. Harvard has a four-step process in which every application is initially screened by a reader who assigns a score to each. Then, subcommittees meet to assess applications from a geographical region, making recommendations to the admissions committee. This committee takes these recommendations under advisement, and the forty members each vote on the candidate. Race is taken into consideration at each step. In the final step, the tentatively admitted students are cut further. Students placed on the “lop” list for cutting are revisited again with four factors in mind: legacy status, recruited athlete status, financial aid eligibility, and race.
For UNC, the process is slightly simpler. First every application is initially reviewed by one of forty admissions office readers who are required to consider race and ethnicity as one factor in their review. These readers assign numerical ratings for the academic, extracurricular, personal, and essay categories and write a comment defending their recommended decision. These applications then go to a committee of staff members who make the final decision. Race may be considered in this final step.
IV. What Happens Now?
Supporters of the decision have hailed it as a moral victory, while opponents have deemed it a “clear and present danger” to equal education. With convincing arguments on both sides, there is one thing that I believe is crucial to remember with a decision such as this one. The college admissions process is subjective. As mentioned previously in Harvard’s and UNC’s processes, these are people making these decisions based on how they read a potential student’s application and what they believe the institution is looking for in its next class. Human error is inevitable, and subjectivity leads to more than one right answer.
We should not be quick to blame one factor as an end-all-be-all to whether or not the school will provide a well-rounded and effective education. Zack Mabel, a researcher for Georgetown’s Center for Education and the Workforce, expects the number of black and brown students attending selective colleges nationwide to drop from 20% to 16%. All in all, is that 4% going to allow students to have less of a diverse education and decrease the amount of qualified leaders these universities produce? Additionally, Asian American admissions went down 11.1% with the adoption of affirmative action programs, requiring them to have substantially higher test scores to be on the same playing field as other demographics. All of this is to say that no one can benefit without another’s detriment. With or without affirmative action, what kind of choice is it to decide which ethnic groups get the easier pathway to a college degree?
Lastly, there are other arguably more important factors to consider besides race. Justice Jackson stated in her dissent that colleges and universities will still be able to consider other factors to increase diversity on campus, such as an applicant’s socioeconomic status, whether or not an applicant is a first generation college student, and whether or not an applicant can speak multiple languages. Although she is correct in saying that these factors are not interchangeable with race, they are–or are extremely close to being–interchangeable with race in the realm of college admissions. Race is a skin color; these other factors make the prospective students into who they are and molds their pillars and beliefs because of their different experiences.
A personal statement is a large part of the application process for getting into any selective college or university. Undoubtedly, race unfortunately still plays a large role in our society, hindering the potential successes of people of color. This is something that should be brought up and explained further in the prospective student’s personal statement. Along with the qualifications of the applicant, personal experiences, and how the applicant’s race, ethnicity, gender, sexual orientation, nationality, or any other trait has made them who they are will further aid in accomplishing the colleges’ and universities’ common goals of providing a well-rounded education and producing future leaders.