Should affirmative action be banned in college admissions?

Update — October 31, 2022

General

The most diverse supreme Court ever confronts affirmative action

Supreme Court to consider landmark challenge to Harvard and UNC affirmative action policies?

The Supreme Court will hear two cases that are likely to end affirmative action

This is the end of affirmative action

Updates

Supreme Court Oral Arguments Summary. Listen to the Arguments

Background

Today (October 31, 2022), the US Supreme Court will hear two related cases about the constitutionality of continuing affirmative action in US university admissions. CNN Reports

For nearly 60 years, institutions of higher education have been able to give limited preference to people of color and women with admissions.

The practice, advocates say, has afforded marginalized people a fair chance to attend colleges and universities that may have otherwise overlooked them. It has also been a tool to prevent discrimination at institutions, many of which historically only admitted White students.

Now the fate of affirmative action is in the hands of the conservative majority Supreme Court. On Monday, justices will hear arguments for two cases at Harvard and the University of North Carolina.

The challenges are being spearheaded by conservative activist Edwin Blum who filed the lawsuits in 2014.

The Harvard challenge cites Title VI of the 1964 Civil Rights Act, which prohibits schools receiving federal funds from discriminating based on race. The UNC lawsuit also claims Title VI grounds, as well as a violation of the 14th Amendment’s guarantee of equal protection of the law, which covers state institutions.

Although the Court is expected to reject the constitutionality of the policies, they are highly controversial and there is a lot to speak and debate about.

The Wall Street Journal explained the Harvard case in more detail:

A closely watched lawsuit accusing Harvard University of discriminating against Asian-American applicants is approaching a critical juncture, as court filings later this week are expected to reveal new details about how the school’s undergraduate admissions process affects different ethnic and racial groups.

Both sides are due to submit lengthy documents Friday in Boston federal court that will serve as a preview for an October bench trial, in which a federal judge will decide whether the school’s affirmative-action practices are unconstitutional or illegal under federal civil-rights law.

The lawsuit against Harvard was filed in 2014 by Students for Fair Admissions, a nonprofit whose members include Asian-American students who were denied admission to Harvard.

The plaintiffs allege Harvard intentionally discriminates against Asian-Americans by limiting the number of Asian-American students who are admitted and holding them to a higher standard than students of other races.

Friday’s motions are likely to include thousands of pages of supporting documents both sides have gathered over the past two years, including dozens of depositions and statistical analyses of detailed admissions data covering six years, during which roughly 200,000 people applied to Harvard.

In a court filing from March, lawyers for Harvard said both sides have “submitted expert reports that analyze identical data yet reach diametrically opposed conclusions.”

Friday’s public filings could provide a rare look at how Harvard makes its undergraduate admissions decisions. Many documents in the case so far have been submitted to the court under seal, and both sides have tussled for years over which details can be made public, with Harvard citing concerns about applicants’ privacy.

The filings, known as motions for summary judgment, will ask the judge to resolve the case without going to trial. The judge has indicated she is unlikely to grant the motions, setting the stage for an Oct. 15 trial, which is estimated to last three to four weeks.

Among the claims in the lawsuit are allegations that Harvard relies too heavily on race in its admissions decisions, and that the school engages in unlawful racial balancing.

Harvard has previously said its admission process is consistent with legal precedents that allow universities to consider race as a factor in admissions to obtain the benefits of a diverse student body.

Drew Faust, the university’s president, said in a message Tuesday to Harvard students, faculty, staff and alumni that the plaintiffs will paint an “inaccurate image” of the school’s admissions processes and rely on “misleading, selectively presented data taken out of context.”

She said Harvard will defend “the processes by which it seeks to create a diverse educational community.”

Harvard admitted 4.6% of its 42,749 applicants for the incoming first-year undergraduate class. Of those who accepted their admission offers, 22.7% self-reported as Asian-American, 14.5% as African-Americans, 10.8% as Latino and 2.3% as Native American and Native Hawaiian.

Lawyers for Students for Fair Admissions say their goal is to reach the Supreme Court and overturn racial preferences in university admissions, ultimately eliminating affirmative action.

The group filed a similar lawsuit in 2014 against the University of North Carolina at Chapel Hill, which is scheduled to go to trial in April 2019.

The nonprofit is led by Edward Blum, a conservative legal activist who also spearheaded a lawsuit against University of Texas at Austin’s admissions practices that landed in the Supreme Court.

In a 4-3 ruling upholding the use of racial preferences in public university admissions, Justice Anthony Kennedy left the door open in 2016 to future legal challenges by saying universities must continue to review their affirmative-action policies to assess their positive and negative effects.

Many elite colleges have come to Harvard’s defense.

[See more: Smoking gun on Anti-Asian bias at Harvard?]

The Supreme Court has previously weighed in on this battle.

In 2003 (Grutter v. Bollinger, which clarified the Bakke decision (1978)), the Supreme Court ruled that an admissions preference system that uses numerical point systems quota systems to allocate admissions slots based on race is not permitted but that universities can take race into account during admissions in more subtle ways:

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, https://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9–1

Over the last three decades, the court has issued several decisions on affirmative action in higher education, and most have limited considerations of race. In 2003, the Supreme Court held that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in more vague ways to ensure academic diversity.

In Grutter, the Supreme Court said that the University of Michigan Law School could consider race in individual applications but in Gratz they said that the undergraduate school could not automatically assign 20 points to every minority. So, again, a specific point system is not acceptable, but subtle consideration is.

Although the US Supreme Court made significant rulings on the issue, it took it up again in 2015 in Fisher vs. the University of Texas due to a new lawsuit that challenges the University of Texas’ decision to continuing to factor in race in college admissions:

Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas’ Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court, which held that the appellate court erred by not applying the strict scrutiny standard to the University’s admission policies. The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.

Strict Scrutiny is a legal standard that says that government policies can only discriminate if there is a compelling state interest and no least restrictive alternatives are available. In this case the lower court found both of those were the case.

Most universities continue to consider race as a factor in admissions in this more subtle ways, though such usage is banned in eight states. Universities in these states, as well as other universities that continue to take race into account, also use additional measures to ensure racial and economic diversity. This measures include taking students who rank high in their class regardless of the high school’s own ranking, which can reflect neighborhood and socioeconomic status, and accepting more transfer students from community colleges.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, https://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9–1

Eight states now ban race-based affirmative action, and their top public universities have different approaches to ensure racial and economic diversity. Some give preference to working-class students, those from troubled high schools and those whose parents did not attend college. Others have increased financial aid. The flagship public universities in Texas and Florida — and other states, to a lesser extent — began offering admission based primarily on how high students ranked within their own high schools, rather than statewide, which often meant that poor and minority students competed with others from similar backgrounds. The University of California system greatly increased the number of transfer students it accepted from community colleges.

Another article provides a similar explanation —

Richard Kahlenberg, May 18, 2015, Chronicle of Higher Education, For the Safe of Working Class Students, Give Fisher another chance, https://chronicle.com/article/For-the-Sake-of-Working-Class/230239?cid=megamenu DOA: 9-9-15 Richard D. Kahlenberg is a senior fellow at the Century Foundation and editor of The Future of Affirmative Action: New Paths to Diversity After Fisher v. University of Texas (Century Foundation Press, 2014).

Instead, a majority of people believe in using alternatives to race when feasible — policies like providing a leg up to economically disadvantaged students, boosting financial aid, increasing transfers from community colleges, ending legacy preferences, and reducing an emphasis on tests in favor of students in the top portion of a state’s high schools.

Arguments in Favor of Consideration of Race

The primary argument in favor of consideration of race in college admissions is that eliminating it would reduce the number of minority applicants, particularly Blacks, who are accepted. This has happened in other states where race was banned.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, https://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9-15

The state bans on considering race have struck hard at elite public universities seeking to maintain a pool of minority students. The three most selective institutions in the states with bans — the University of Michigan; the University of California, Los Angeles; and the University of California, Berkeley — have all lost ground in diversity since their state bans went into effect. “Those three compete on a national level with universities like Stanford and Harvard,” said Richard D. Kahlenberg, the author of the Century Foundation report. “They’re in an impossible situation, since they have to play by one set of rules and the private universities have a different set of rules.”

Some argue that a ban on the use of race in college admissions would encourage universities to do more to help struggling high schools but many do not have the resources to do that.

Tamara Lewin and Richard Perez-Pena, June 30, 2015, Colleges Brace for Supreme Court Review of Race-Based Admissions, New York Times, https://www.nytimes.com/2015/07/01/us/politics/colleges-brace-for-supreme-court-review-of-admissions.html?_r=0 DOA: 9-9-15

Anthony P. Carnevale, the director of the Center on Education and the Workforce at Georgetown, said most race-neutral diversity efforts were difficult and expensive. “The fact is, a lot of universities couldn’t afford to do a lot more,” he said. Ultimately, each university will have to decide where to put its energies and its dollars.

Beyond the argument that eliminating race based considerations in admissions hurts individual applicants, a strong argument that it hurts university decision-making.

Why?

Because a reasonable argument can be made that universities should be able to set their own admissions criteria and that the only relevant admissions factors are not grades and scores. For examples, universities also want to encourage diverse communities so that students can learn from each other through real life experiences. In order for universities to provide that experience, they have to have admissions processes and standards that make the admission of diverse student populations possible.

The Problem with Allowing Race Considerations in Admissions

The primary problem with allowing the consideration of race in admissions is that it results in reverse discrimination against whites who are disadvantage simply by the fact that they are white.

So, yes, as noted, universities should be able to use admissions standards that further their own aims in terms of what type of communities they want to build, but we can also all agreed that they shouldn’t be able to use discriminatory admissions standards. For example, everyone would agree that universities should not be allowed to ban African Americans from attending their universities if the university is founded by whit supremacists, so if admissions criteria disadvantage a group in a way that doesn’t serve a compelling state interest (racism is not a compelling state interest (or a state interest at all)), then it makes sense that it should not be accepted as one. Opponents of affirmative action in college admissions think it has a discriminatory purpose (or at least a discriminatory outcome) and should not be accepted.

Conclusion

The debate over affirmative action is a long one and it will not end soon. To win it, affirmative action advocates teams should focus on the benefits of admissions to the historically disadvantaged as well as the benefits of a diverse university. Opponents should focus on the reverse discrimination that occurs as a result of affirmative action.

So, there are two debates that can occur —

(1) Is the practice constitutional? This question essentially asks debaters and speakers to take a position on the Supreme Court case.

(2) Is the practice desirable? Regardless of whether or not universities should be able to do this from a legal perspective, there is the question of whether or not they should do it. This is a policy question on which there is an interesting debate.

The case that the Supreme Court decided — Fisher v. University of Texas — is covered extensively at Scotusblog. If you click on this link, you can read the original Supreme Court decision as well as related articles, and, mostly importantly, amicus briefs that were filed by different organizations taking positions on both the legality and desirability of considering race in university admissions.

News

Additional recent news articles on the topic

Background

What is affirmative action? How does it impact college admissions?

Affirmative action statistics after 50. years

Here’s what’s going on with affirmative action and admissions

The Trump administration is getting ready to sue US universities over affirmative action

Trump administration officials reverse Obama policies on admissions

What you need to know about race conscious admissions in 2017

How affirmative action has evolved in the US over the years

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