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Could Time Be Up for Race-Based Admissions?
If the Supreme Court strikes down UNC’s and Harvard’s affirmative action policies, it could represent a significant step toward color-blind admission policies
By Christina Sandefur
In 2003, the Supreme Court upheld the constitutionality of a public university’s practice of basing its admissions decisions on students’ race. In the court’s majority opinion, Justice Sandra Day O’Connor wrote that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” But this Monday, the court will be asked to accelerate that deadline when it hears arguments in two cases that could determine the legality of race-based admissions policies, under both the Constitution and the Civil Rights Act of 1964.
The lawsuits were brought by Students for Fair Admissions (SFFA), a group of more than 20,000 students and parents who believe “a student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university.” SFFA sued the University of North Carolina (UNC), a public school, and Harvard University, a private school, for using race when selecting students. According to the lawsuits, the universities’ practices penalize students of certain races, such as Asian Americans. Indeed, Harvard’s racial makeup has remained consistent over the years, despite changes in application rates of students with different racial backgrounds, revealing that its policies aim to achieve a “predetermined racial balance” at the school.
The Supreme Court has always been careful not to endorse full-blown racial quotas, but it has permitted schools to take race into account in significant ways. The Harvard and UNC cases represent the first time this question has been squarely before the court in nearly two decades, when the court, in a pair of cases involving the University of Michigan, narrowly endorsed race-conscious admissions programs, as long as race was only part of the consideration.
In the first case, Grutter v. Bollinger, the court held that Michigan’s “holistic” process, which took race into account alongside a number of other factors, survived constitutional scrutiny. But in the accompanying Gratz v. Bollinger, it held that a system for deciding undergraduate admissions that awarded a fixed number of points based on race did not. Those cases depended on a decision from a quarter century earlier, University of California v. Bakke, in which the court upheld race-based admissions policies that aimed at “diversifying” the student body. It is constitutional, said the Grutter decision, for government-run colleges to consider race as a factor in choosing students in order to achieve this type of diversity.
In Monday’s arguments, SFFA will ask the court to overrule Grutter and hold that universities can’t consider race at all.
Affirmative Action’s Flaws
Proponents of affirmative action argue that such programs help create opportunities for disadvantaged minorities. But race-based admissions policies also create harmful stigmas, send minorities the message that they can’t succeed without government help and set up unprepared students for failure. For those who are “favored” by the policies, affirmative action can make it difficult to be taken seriously, since others will perceive them as being selected because of race rather than merit.
Even worse, it is unjust to students who are disfavored under such policies and who are therefore discriminated against based on their race. Documents obtained during SFFA’s litigation—which Harvard tried hard to keep secret—revealed that the university consistently assigned Asian Americans lower “personal ratings” than it did other racial and ethnic groups, and that its admissions policy was intentionally biased against Asian American applicants because that demographic of students tends to perform so highly in school.
Affirmative action also ignores the root problem: The American public school system is failing to prepare students for college and teach them professional skills. The National Center for Education Statistics reports that in 2022, only 37% of white eighth-grade students are proficient in reading. The numbers for Hispanic students (20%) and Black students (15%) are even more dismal.
Race-based preferential treatment in the college admissions process is at best a flimsy bandage on a gaping wound. A lifetime of substandard education (due to socioeconomic factors or otherwise) can’t be cured by admission into a university at which a student isn’t equipped to thrive. For example, the Center for Equal Opportunity found that under the University of Michigan’s affirmative action program, the university admitted 92% of Black applicants with a 3.2 GPA and a 1240 SAT score, but admitted only 14% of white applicants with those same credentials. The result? More than a third of Black students at the university ended up on academic probation, while only 7% of white students did. This “mismatch” effect—where students receive admission to colleges whose academic standards they are not prepared to meet—effectively sets students up for failure. Providing students greater opportunities earlier in their education through school choice programs does far more to give them the tools for success—and does so without judging them on the basis of race.
Ironically, previous court interpretations of federal civil rights law have enabled—and in some cases required—public and private institutions to discriminate. Even universities in states that ban affirmative action and race-based preferential treatment in the hiring, admissions and operation of public institutions (including schools) have nevertheless been able to implement racially discriminatory policies if enacted with the support of the federal government.
In 1984, the Supreme Court held that even private colleges that receive no government funding would nevertheless be required to abide by federal requirements such as counting students by race if they admitted students who receive government financial assistance. Hillsdale College in Michigan was the first American college to prohibit in its charter any discrimination based on race, religion or sex and was a force in the abolitionist movement, sending a higher percentage of its students to fight for the Union in the Civil War than any college except for military academies. Thus, when the federal government required categorizing students by race as a condition of receiving government funding, the school ended participation in all federal financial aid programs and decided to raise student aid privately, to maintain its traditional race-neutral policies.
That was no easy feat, and few colleges were able to imitate it. As a result, even nominally private colleges are required by federal regulations to categorize students differently based on the color of their skin. The outcome in the SFFA cases could chip away at these federal race-based policies.
Can the Court Put an End to Race-Based Admission Criteria?
Even if the Supreme Court puts an immediate end to universities’ affirmative action programs—which is a very real possibility with the current case—does that mean schools will no longer consider race when selecting students? Not necessarily. Some schools will undoubtedly find other ways to identify candidates by race—through the use of photos, personal statements and the like—or they will use proxies for race, such as names, ancestry and zip codes. This could leave “disfavored” minorities, like the Asian American students in this case, not much better off than they are under the current system.
In fact, that’s what California’s public universities have been doing for decades. In 1996, that state’s voters approved the California Civil Rights Initiative, which banned state officials from taking race, sex, color, ethnicity or national origin into account when making decisions regarding public employment, education and contracting. No longer permitted to overtly discriminate on the basis of race in admissions, the University of California sought ways to check for race under various euphemisms. It eliminated standardized admissions tests such as the SAT and ACT, which it claims are unfair to Black and Hispanic students—despite there being no evidence that such tests are biased against minorities—and relied on the essays prospective students included in their admissions packets to select students based on race. That effort was aided by the state’s political leadership. In the quarter-century since the Civil Rights Initiative was adopted, no governor or attorney general has ever enforced that law.
Cynics might conclude from this that university administrators will simply ignore any Supreme Court decision striking down affirmative action in universities. But just because courts and governors can’t or won’t completely eliminate racial discrimination in college admissions doesn’t mean a decision declaring such behavior illegal would be useless. A clear decree that America’s universities can no longer treat students differently based on race brings us one step closer to the color-blind society these plaintiffs desire. After all, a world in which government-sanctioned racism is prohibited is better than one in which it receives the blessing of the Supreme Court.