Did the Supreme Court Really End Affirmative Action? Maybe Not.

The recent U.S. Supreme Court decision banning the consideration of race in college admissions will send unwelcome — though not entirely unexpected — shockwaves throughout much of higher education, altering how admissions decisions are made and how student bodies are formed.

How might colleges respond? And what are the potential repercussions of this landmark decision?

In a 6-3 opinion written by Chief Justice John Roberts, the Supreme Court held that the admissions policies at Harvard and the University of North Carolina violate the 14th Amendment’s guarantee to equal protection under the law.

“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints,” Roberts wrote. “We have never permitted admissions programs to work in that way, and we will not do so today.”

In a concurring opinion, Justice Clarence Thomas remained dubious about diversity’s inherent educational benefits, a position he made clear during oral arguments.

“If Harvard cannot even explain the link between racial diversity and education,” Thomas wrote, “then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness.”

Claiming the Constitution considers race “irrelevant,” Thomas rejected the notion that race forms one’s identity.

“All racial categories are little more than stereotypes,” he wrote, “suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities.”

In a dissenting opinion, Justice Sonia Sotomayor — joined by Justices Elena Kagan and Ketanji Brown Jackson (who recused herself from the Harvard case given her affiliation with the university) — criticized the majority opinion for ignoring decades of precedent and warned of the potentially destructive consequences of the ruling.

“By ending race-conscious college admissions, this Court closes the door of opportunity that the Court’s precedents helped open to young students of every race,” Sotomayor wrote. “It creates a leadership pipeline that is less diverse than our increasingly diverse society, reserving ‘positions of influence, affluence, and prestige in America’ for a predominantly white pool of college graduates.”

Notably, in a footnote, the majority opinion exempted military academies from the ruling given “the potentially distinct interests” they may present.

The court’s opinion offered minority applicants a ray of hope in the form of college application essays, a vehicle students might use to address their racial identity.

“At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university,” Roberts wrote.

In her dissent, Sotomayor acknowledged this caveat, adding that the “supposed recognition that universities can, in some situations, consider race in application essays is nothing but an attempt to put lipstick on a pig.”

Yet the use of essays to establish race remains somewhat vague given this clarification within the majority opinion:

“[D]espite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

In other words, the essay cannot become a proxy for the racial “checkbox” universities use to identify race in the strictest sense, but it can help provide an opportunity for students to address “challenges bested, skills built, or lessons learned.”

Harvard, for one, takes some solace in this narrow loophole, noting the language in its official response to the court’s ruling.

From a philosophical perspective, universities will undoubtedly remain committed to educating a diverse student body. Harvard’s statement reaffirms the “fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences.”

But from a practical standpoint, how will universities achieve that goal?

One popular notion, which was addressed during oral arguments and in the court’s opinions, is the substitution of income for race. Wouldn’t admissions policies offering favorable consideration of low-income students yield the desired diversity results?That’s the theory behind “top 10%” plans that seek to boost diversity by enrolling the best students from all high schools within a state, including schools with high minority populations.

The problem is that they don’t work well.

Texas has had limited success with its 10% plan. One reason is cost. Many students in low-income communities simply cannot afford to attend a four-year university. As a result, those who are admitted are less likely to enroll.

Moreover, these students, even though they represent the top tier of their high school class, aren’t always adequately prepared for college.

One analysis of the Texas plan and similar efforts in California and Florida concluded that “replacing a holistic admissions policy with a top 10% plan … would not successfully restore the number of students of color at the most selective four-year campuses that would be achieved under a policy that considers race.”

What’s more, it’s entirely possible top 10% plans might be deemed unconstitutional in light of this decision. Justice Ruth Bader Ginsburg pointed out in a 2013 Supreme Court decision on Texas’ policy that it’s “race-consciousness, not blindness to race, that drives such plans.”

Regardless, while income-based “affirmative action” might benefit some minority applicants, as well as low-income white and Asian American students, it’s not a perfect substitute for race-conscious remedies.

Ahead of the SCOTUS decision, the American Association of Collegiate Registrars and Admissions Officers (AACRAO) encouraged universities to maintain holistic policies that don’t “involve or employ any affirmative action/racial preference measures.”

This might entail considering first-generation status, doubling down on recruitment efforts in certain geographic areas, strengthening relationships with partner schools in those districts, and de-emphasizing test scores (thousands of colleges remain test-optional in the wake of COVID-19).

Another possible strategy is eliminating legacy admissions, a longstanding practice of favoring alumni children that has been criticized as “affirmative action for the rich.” A few elite colleges, including Amherst College and Johns Hopkins University, have jettisoned this activity, and others might follow suit. Rumblings at the University of Pennsylvania suggest it might soon abandon legacy preferences.

As the court pointed out, college admissions is a zero-sum game. For every admitted student, one is rejected. Fewer legacy admits will, in theory, open additional seats, but for whom?

Regardless of what measures universities adopt in this post-affirmative action world, minority enrollments are likely to decrease.

That’s been the experience of states that already abandoned affirmative action. Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington have passed laws prohibiting affirmative action in university admissions.

California provides a fascinating case study because of its diverse population and the breadth of its public higher education system.

Voters in California passed Proposition 209 in 1996, banning race-conscious admissions policies. Immediately following the affirmative action ban, the number of first-year students from underrepresented minority groups dropped precipitously across the system, plummeting by more than half at its most selective campuses, including Berkeley and Los Angeles (UCLA).

In response, the system ramped up its efforts to attract underrepresented students. Measures included outreach programs for low-income and first-generation students, targeted recruitment in certain communities, and summer immersion programs to prepare students for the college environment.

Did it work? Not initially. At UCLA, Black enrollment, which had been 7% before Proposition 209, fell to 3.4% by 1998. In 2006, UCLA’s entering class of almost 5,000 included only 96 Black students, known on campus as the Infamous 96.

Efforts have paid some dividends over time, and numbers have rebounded. By 2019, UCLA’s Black enrollment had grown to almost 6%.

In Michigan, Black undergraduate enrollment fell from 7.03% in 2006, when Proposal 2 was passed, to 3.92% in 2021. During that span, the percentage of college-age Black students in Michigan increased from 16% to 19%.

A similar scenario promises to play out nationwide, including at private universities, and with dire results.

“The devastating impact of this decision cannot be overstated,” Sotomayor wrote. “The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”

In its recommendations to universities, AACRAO warned that the SCOTUS decision may have far-reaching implications for targeted pre-college and recruitment programming, financial aid, scholarship awards, and first-year experience programs.

The ruling also might have impacted hiring practices and faculty recruitment.

Now that the decision has been rendered, however, we see it’s limited to college — and we assume graduate — admissions. Even then, only selective colleges that choose carefully among many more applicants than they can admit will be truly affected.

Not that this decision won’t inspire additional plaintiffs to pursue legal action based on racial preferences.

Then we have the matter of enforcement. Certainly, it’s incumbent upon universities to adhere to the court’s decision, but what if one doesn’t?

What consequences might a university face if it essentially ignores the directive banning race-conscious admissions? If a selective private university continues to consider race in some respect, what would happen? Would any punitive measures have to result from a case being brought against it? How would plaintiffs prove the institution was violating the SCOTUS ruling? Would the university risk losing federal funding?

These are questions for another time. Still, it’s tempting to contemplate how universities can, if at all, remove the consideration of race altogether from admissions decisions and how anyone outside a private university might know what transpires behind closed doors.

Even without an explicit application checkbox for race, certain assumptions can be made based on surnames, ZIP codes, and individual high schools, noted admissions consultant Sara Harberson. It’s a “form of racial profiling in college admissions that no one speaks about,” Harberson wrote on her website.

Similarly, Jayson Weingarten, a college admissions consultant at Ivy Coach and a former Penn admissions officer, told BestColleges he doesn’t believe universities practicing holistic admissions will become purely race-neutral and fail to consider race in some form or fashion.

“We would never be able to completely blind ourselves to a student’s race, ethnicity, and background …,” he said. “There are plenty of clues on an application that give admissions officers context about what is presumably a student’s race.”

Might admissions folks still subtly sneak a thumb back onto the scale to achieve diversity goals?

“At a school that is doing holistic admissions,” Weingarten said, “what is going to come out of the Supreme Court, I would think, is going to have very little impact on the final results of who is admitted.”

Time will tell if his words prove prescient. For now, university officials will spend the summer and fall revising policies — an activity many already have begun in anticipation of this decision — and bracing for a new reality in which racial diversity might become an elusive goal.