The End of Affirmative Action? 

In January 2022, the United States Supreme Court announced that it would hear two cases, one against Harvard University and one against the University of North Carolina, seeking to ban affirmative action in university admissions. The conservative Supreme Court majority is likely to overturn a legacy of race consideration in college admissions.

The history of race as a factor in college admissions begins in the 1960s when Harvard University announced concrete measures to increase the percentage of African American students in its cohorts. Harvard’s plan of action was then adopted by many of the major institutions for higher education in the United States. Aiming to counter the inequality caused by the history of racial segregation, the policies have effectively promoted upward social mobility and diversified cohorts at US universities.

Since its implementation, affirmative action has faced criticism by those who favor admission procedures that are entirely based on academic merit. In the landmark 2003 Supreme Court case Grutter v. Bollinger, the constitutionality of affirmative action was confirmed in scenarios when race is one of many factors considered in the admission process. However, in the same year, the court declared points-based admission systems that grant extra points to minority applicants unconstitutional and contrary to the Equal Protection Clause of the Fourth Amendment. Both Harvard University and the University of North Carolina are now accused of discrimination by giving race overwhelming importance in admission procedures. The difference between the cases is that Harvard is charged with discrimination against Asians while the University of North Carolina is accused of favoring Black and Hispanic applicants. The plaintiff, Students for Fair Admissions,' argued that Harvard’s disproportional consideration of race violates the Equal Protection Clause and Title VI of the Civil Rights Act. The case was tried in 2018 in the state of Massachusetts but, after a 15-day bench trial in 2018, a lower court in Massachusetts found Harvard not guilty of “race balancing,” otherwise known as admission quotas for racial groups at the university. Many consider it unlikely that the Supreme Court has taken on the case to reaffirm the ruling of the state court.

What would the end of affirmative action mean for university communities in the United States? Deans of Yale, Columbia, and Harvard University have spoken out against the lawsuit. In a statement released on the Columbia University website, President Lee Bollinger Broad asserted that “public awareness of the unrelenting impact of racism demands a recommitment to affirmative action, not its abandonment,” deeming affirmative action essential considering the nation’s history. He further described a ban on affirmative action as “calamitous for universities and for the ideals embodied in the Constitution.” The end of affirmative action could significantly decrease the number of Black students admitted to elite universities in the country as Black and Hispanic students have lower average standardized test scores and are subjected to structural obstacles that are not encountered by their white counterparts. However, the plaintiff argues that affirmative action comes at the expense of Asian students, who have lower chances of admission with equal or higher test scores and are consistently ranked lower on the personality scores of the admissions process.

Public opinion seems to confirm the plaintiff’s view. A 2019 survey by the Pew Research Center concluded that 73% of Americans think that race should not be considered in college admissions. However, there is stratification between racial groups, with 78% of Caucasians opposed to affirmative action compared to 65% of Hispanics and 62% of Blacks. This gap persists with political leanings. While 88% of Caucasian Republicans are against the consideration of race, this number falls to 66% among Caucasian Democrats. The consideration of other factors such as legacy status, gender, or athletic ability is equally deemed inappropriate by the majority of survey participants. Therefore, the case puts into question a number of controversial admission practices, especially the elitist concept of legacy admissions.

If affirmative action is found to be unconstitutional, the question of feasible alternatives arises. The benefits of diverse student cohorts in university environments and the positive effect of upward social mobility in the larger society have continually been emphasized by university administrations and the Supreme Court. Especially the late Supreme Court Justice Ruth Bader Ginsburg was a major proponent of the policy. Yet, a similar degree of diversity could be achieved by taking into account the socio-economic background of applicants. Black and Hispanic communities are generally more socio-economically disadvantaged. According to a US government census, the median income of Black households in the United States is $28,000 and $41,000 below that of White and Asian households, respectively. The gap is slightly smaller for Hispanics. Considering household income and access to education resources would hence have similar effects on student diversity to affirmative action. This is not to deny the intersectional experience of members of the Black or Hispanic communities that face disadvantages compared to whites with a similar socioeconomic background. Rather, it acknowledges that the individuals who experience similar levels of poverty equally merit a chance in the higher education system. It further takes into consideration the racism and systemic discrimination that Asian communities are victim to, and counters stereotyping in admissions where the achievements of Asian students are not valued equally because of their ethnic background.

While the official judgment will only be released in 2023, the end of affirmative action will bring changes to the framework of college admissions. However, it may not be necessary to equate this to the end of student diversity in higher education. A range of alternative tools could continue to protect the interests of socially disadvantaged students.