As we wait for the decision, I feel it’s important for unapologetic leaders to continue to fearlessly lead our organizations. We also need to make sure once the decision has been made, that we inform our institutions about the decision and any potential impacts. Furthermore and most importantly, we must make sure our students know they are welcome and supported at our institution.
Overview
The Supreme Court is expected to rule on affirmative action before July 2023. Colleges and think tanks alike, regardless of political affiliation and positioning, anticipate that the court will abolish race-based admissions, colloquially referred to as “affirmative action” within colleges and universities.
The Brookings Institution predicts that the conservative-majority court will use the 14th Amendment and section VI of the 1964 Civil Rights Act as its rationale for barring race-conscious admissions in higher education.
Two cases lie at the center of the pending decision: Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard and SFAI v. University of North Carolina, both brought to the court by the group Students for Fair Admissions. The Students for Fair Admissions is led by conservative legal strategist Edward Blum, who also serves as president of a nonprofit legal foundation that had a hand in Fisher v. University of Texas (I and II) and other Supreme Court cases involving race and ethnicity.
Potential impact
As many colleges do not publicize the details of their admissions processes, it is difficult to accurately predict the true impact of this likely reversal of the legal precedents that set the stage for affirmative action (see below: The legal precedents for affirmative action). However, nine states have banned the use of race in admissions policies. Those states are Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.
California may offer insight into the potential consequences of banning race-conscious admissions in higher education. Following the passage of Proposition 209, which barred affirmative action in any state or government agency, the University of California system saw significant declines in the number of applicants of color, as well as the total number of freshmen admitted. A UC Berkeley study found a 3.6% decline in Black freshmen admitted between 2006 and 2010, nearly halving its Black enrollment pre-Proposition 209.
If the ruling is narrow, it is likely that most highly-selective colleges, such as Harvard University and the University of North Carolina at Chapel Hill, will be the most affected. Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard asserts that Asian-American students are discriminated against, while SFAI v. University of North Carolina argues that Asian-American and white students are discriminated against. Both Harvard and the University of North Carolina deny widespread discrimination, saying that race is factored into only a few cases. The universities say that barring affirmative action will cause a significant decrease in admitted minority students.
Should the Supreme Court rule broadly, the impact on racial equity in higher education could be very significant. Financial aid and special recruitment programs that consider race, such as a program to encourage more Latina women in STEM, could be gutted. Additionally, preventing the inclusion of race and ethnic information in applications could have wide-ranging effects on higher education research, particularly around closing achievement gaps and creating more equity in higher education.
The legal precedents for affirmative action
Regents of the University of California v. Bakke (1978)
The landmark case for affirmative action in the United States was 1978’s Regents of the University of California v. Bakke. The court was divided ideologically, with Justice Lewis Powell serving as the swing vote. Powell’s opinion was unusual in that it argued that colleges and universities could not use affirmative action to remedy the legacy of racial discrimination, effectively striking down the practice of a racial minority allotment at the University of California.
However, he also wrote in his opinion that increasing campus diversity is a compelling interest as exposure to diverse viewpoints for students of all racial backgrounds. He ruled colleges could include race as a factor in admissions as long as it was not the sole reason for acceptance into a college or university.
Grutter v. Bollinger (2003)
Following rejection from the University of Michigan Law School, Barbara Grutter alleged she was denied admission because she was white and the school gave priority to certain minority groups. The Supreme Court held that the University of Michigan did not violate Grutter’s 14th Amendment rights, provided other factors beyond race were considered, upholding its Regents of the University of California v. Bakke decision that race-based quotas are unconstitutional.
Gratz v. Bollinger (2003)
On the same day, the Supreme Court also ruled on Gratz v. Bollinger. The University of Michigan used a point scale to rank applicants, part of which allotted additional points to underrepresented and minority students. Chief Justice Rehnquist wrote in his majority opinion that the University’s point system’s “predetermined point allocations” toward admission to underrepresented minorities “ensures that the diversity contributions of applicants cannot be individually assessed” and was therefore unconstitutional.
Fisher v. University of Texas (2013)/Fisher I
Two plaintiffs, Abigail Fisher and Rachel Michalewicz (who later dropped out), filed suit after both were denied admission to the University of Texas. In the 2013 ruling, the Supreme Court sided with the University and remanded the case back to the lower court, arguing that it had not applied the standard of strict scrutiny.
Fisher v. University of Texas (2016)/Fisher II
In 2016, Fisher returned with a new suit against the University of Texas. The Supreme Court held that the Court of Appeals for the Fifth Circuit found that the University undergraduate admissions policy survived strict scrutiny, in accordance with Fisher v. University of Texas (2013), which ruled that strict scrutiny should be applied to determine the constitutionality of the University’s race-conscious admissions policy.
The cultural and historical precedents
Affirmative action, as a concept, was first introduced into the American consciousness in 1961 after President John F. Kennedy issued an executive order to ensure equal opportunity for all Americans in government agencies. His successor, President Lyndon B. Johnson, extended equal opportunity to all public and private organizations that received federal funding, explicitly barring discrimination based on race, color, religion and national origin.
Arthur Fletcher, President Richard Nixon’s labor secretary, created the framework for affirmative action models in 1969. The “Revised Philadelphia Plan” required government contractors in the City of Brotherly Love to set goals and timetables to hire more Black and African-American workers. Ultimately the plan influenced higher education institutions’ race-conscious admissions practices.
Conclusion
In summary, the U.S. Supreme Court is expected to issue its opinion very soon. A narrow opinion of the court will likely impact highly-selective institutions more so than the vast majority of colleges and universities. A broad ruling is more difficult to estimate, although it could have wide-ranging implications on financial aid and special recruitment programs designed to increase enrollment for underrepresented groups. Additionally, it may impact higher education research overall, and equity-based higher education research in particular, if it is ruled that no race or ethnic information can be collected during the admissions process.
As we wait for the decision, I feel it’s important for unapologetic leaders to continue to lead our organizations and not be in fear. We also need to make sure once the decision has been made, we inform our institutions about the decision and the potential impact it could or could not have on our institution. Furthermore and most importantly, we make sure our students know they are welcome and supported at our institution.
Citations
“Fisher v. University of Texas.” Oyez, www.oyez.org/cases/2012/11-345. Accessed 9 Jun. 2023.
“Fisher v. University of Texas.” Oyez, www.oyez.org/cases/2015/14-981. Accessed 9 Jun. 2023.
“Gratz v. Bollinger.” Oyez, www.oyez.org/cases/2002/02-516. Accessed 9 Jun. 2023.
“Grutter v. Bollinger.” Oyez, www.oyez.org/cases/2002/02-241. Accessed 9 Jun. 2023.
“Regents of the University of California v. Bakke.” Oyez, www.oyez.org/cases/1979/76-811. Accessed 9 Jun. 2023.