America joins California

The Supreme Court has ruled that colleges may no longer use race in admission decisions. The 2023 Harvard/UNC decision overturned decades of legal precedent that had allowed colleges to consider “race” in order to create diverse college communities.

Implications of the Harvard/UNC decision

With this ruling, the court embraced a new “color blind” interpretation of the 14th Amendment of the US Constitution, an amendment adopted after the Civil War that guarantees equal protection of the law for Black citizens.

Selective public and private colleges throughout the nation now need new strategies to support racial diversity. The impact of this ruling may extend well beyond admission policies. It has the potential to force changes to race-based scholarships, for example, as well as tutoring, hiring practices, and other policies that specifically take race into consideration.

What is affirmative action?

Affirmative action is a strategy to address historic discrimination in education and in the workplace. By making sex or race a factor to consider, affirmative action seeks to actively include applicants who have historically been left out. Government use of affirmative action dates back to efforts in the 1960s to expand opportunities for minorities, women, and individuals with disabilities. The practice was created because existing government strategies were not creating a more equitable society.

Affirmative action is not a system of racial quotas, which have been illegal since 1978. Rather, affirmative action uses race as one factor, but not the determining factor, in hiring and admission decisions.

California had already banned affirmative action

For California’s public colleges, the 2023 Supreme Court decision essentially means business as usual. In 1996, California voters passed Proposition 209, a state constitutional amendment that broadly outlawed affirmative action:

Public colleges in California have used a variety of strategies to promote diversity without specifically using race. Unfortunately, these approaches have failed to enable the University of California (UC) to come even close to matching the demographics of California's high school graduates, according to the organization’s accountability report.

The chart below should be read from left to right. The left side shows the portion of California’s 9th graders associated with various racial/ethnic identities — roughly half of them Hispanic/Latinx. The right side shows the equivalent identity profile of students who graduated high school college-ready, applied and were admitted to a UC campus, and a year later were still enrolled. The largest single group is students who identify as Asian.

What did the Supreme Court actually say in 2023?

The full 237-page decision amounts to a rule that colleges and universities may not use race as a factor in deciding admissions. They may, however, consider how race has affected a student’s life and how the student’s experiences and perspective can contribute to the University.

The ruling involved two separate cases that challenged admission policies at two highly selective universities, Harvard and the University of North Carolina. The plaintiff, Students for Fair Admissions, argued that admissions policies at these colleges violated the equal protection clause of the 14th amendment. Both universities used race as one factor in admission decisions in order to create a more diverse student body.

The Supreme Court held 6 to 3 that these universities’ use of race as a factor violated the equal protection clause.

What is strict scrutiny?

Let’s back up a little bit. The court has rules that determine when “race” can serve as a basis for a policy. There has to be a very, very good reason. It can’t be just rational or sensible. The bar is much higher than that. The court uses a test called strict scrutiny to decide whether the use of race violates constitutional equal protection principles. To withstand strict scrutiny, a law must be narrowly tailored to serve a compelling government interest.

In racial discrimination cases, the compelling interest is frequently to remedy past discrimination. For decades, the court had held that creating a diverse student body met the strict scrutiny test. In the Harvard/UNC decision, the conservative majority came to the opposite conclusion.

Quotes from Supreme Court Justices

The simplest argument from the court’s ruling was penned by Chief Justice Roberts:

The three women justices who reflect minority backgrounds on the court, Hispanic, Jewish, and Black, blasted the decision.

Color-blind admissions and diversity at the University of California

The University of California was discussed as an example in the deliberations because it is a good test case to see the impact of eliminating race from consideration in admissions. According to a University of California legal brief filed in the Harvard/UNC case,

• “After Proposition 209 barred consideration of race in admissions decisions at public universities in California, freshmen enrollees from underrepresented minority groups dropped precipitously at UC, and dropped by 50% or more at UC’s most selective campuses.”
• “Since then, UC has implemented numerous and wide- ranging race-neutral measures designed to increase diversity of all sorts, including racial diversity. Those measures run the gamut from outreach programs directed at low-income students and students from families with little college experience, to programs designed to increase UC’s geographic reach, to holistic admissions policies.”
• “Those programs have enabled UC to make significant gains in its system-wide diversity. Yet despite its extensive efforts, UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity.”

UC strategies to increase diversity

The UC system has made boosting diversity an explicit goal, and it is tracking data to measure progress. The system has identified the following strategies, which can guide colleges and universities in developing revised admission policies.

Saying it out loud

Whether you support affirmative action or oppose it, we need to remind ourselves that we would not be in this situation if our country met the needs of all children.

Inequitable education outcomes are the result of conditions that affect students long before they apply to college. Efforts to diversify highly selective colleges are very important, but they affect very few people because most colleges are not highly selective. In contrast, making sure families have economic stability, health care, preschool and well-funded public schools are more effective long-term strategies to create a more equitable society. Affirmative action is playing “catch up” for our lack of commitment to investing in equity throughout our society.