Affirmative Action on the Chopping Block

The elephant in the higher education policy space is AFFIRMATIVE ACTION. In considering two cases, Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. the University of North Carolina, the Supreme Court could ban colleges and universities from considering race in their admissions process. Banning affirmative action would threaten the higher education ecosystem and disrupt many other public institutions. Higher education leaders, policymakers, and the students who will be most impacted by the cases are wondering:

• What would admissions look like going forward at various higher education institutions?
• How do we ensure students of color have equal access to higher education?
• What impact would this have on the K-12 education system?
• How would this impact our country’s workforce and economy?

Brief History of Affirmative Action

This is not the first time race-conscious admissions have been challenged, and it probably will not be the last. So, let’s begin with a brief history of how affirmative action came about and how it became such a controversial topic.

The modern history of affirmative action begins at the height of the Civil Rights movement in both the Kennedy and Johnson administrations. The purpose of affirmative action was to address the structural barriers – deeply rooted in this country’s historical discrimination and systemic racism – that have denied underrepresented and communities of color from accessing equal opportunities for employment, education, and housing.

Universities and colleges have used affirmative action as a tool to create a diverse student body that enriches the educational experiences of all students. The practice of race-conscious admission practices became an issue in the 1978 Supreme Court case Regents of the University of California v. Bakke. In this case, Allan Bakke, a white applicant who applied to the University of California, Davis School of Medicine, argued that he was denied medical school admission based on his race despite having higher test scores and grades than minority applicants. The court ruled that racial quotas were unconstitutional, but race-conscious admission practices were allowed.

Twenty-five years later, another attempt to ban race-conscious admission practices came to the Supreme Court. In the 2003 Grutter v. Bollinger case, a white applicant named Barbara Grutter sued the University of Michigan Law School on the basis that their admission process had violated her rights under Fourteenth Amendment’s Equal Protection Clause. The Court ruled in favor of the University, holding that its admission practices to promote educational diversity were constitutional.

Ten years later, Fisher v. Texas was brought not once but twice to the Supreme Court. At the time, the University of Texas (UT) had a two-tiered admission policy. Under state law, any Texas graduating senior in the top ten percent of their high school class is automatically admitted to all state-funded universities. Those who do not meet the criteria are subjected to a holistic review, examining GPA, test scores, extracurricular activities, leadership skills, race, and socioeconomic status. Abigail Fisher, a white female Texas resident, didn’t meet Texas’s top ten percent criteria and was evaluated under the university’s holistic review process. Because Abigail was not admitted to UT, she sued the university for violating her rights. In a 7-1 decision, the Court first ruled in favor of the university but emphasized that UT’s ability to use race would be subject to “strict scrutiny.” Three years later, Fisher sued yet again. In a 4-3 ruling, the Court upheld the university's admissions policy.

Meanwhile, some states have outlawed public institutions from using race, ethnicity, or sex as a consideration in employment and education decisions. The first state to do this was California, in 1996, through a ballot initiative called Proposition 209. Today, nine states have banned the use of race-conscious admissions practices. Two of those states, California and Michigan, filed amicus briefs with the Supreme Court in the Students for Fair Admissions cases expressing deep concern that prohibiting race-conscious admissions practices have caused a decline in postsecondary enrollment by Black and Latinx students, especially at selective and highly-selective colleges and universities in their states.

Why Does This Issue Matter?

More than just higher education admissions is at stake. The Supreme Court’s decision could have profound negative implications on our workforce and economy. Higher education institutions are tasked with equipping and preparing students to contribute to this country’s economic growth. Research shows that a diversified workforce can lead to a more robust economy. However, a diversified workforce cannot be attained if access to higher education for marginalized and underserved communities continues to be curtailed.

These cases are just the start of what is yet to come in America’s long uphill battle to achieve racial equality. A number of conservative-leaning states are now pushing to do away with campus-based programming that fosters diversity, equity, and inclusion (DEI) and ban critical race theory. A federal ban on affirmative action could quickly encourage more states to produce harmful policies and discourse that would hinder student access to high-quality and affordable postsecondary education and create a hostile campus environment where students would not feel they belonged.

As this country tries to correct its wrongdoings of systemic racism and oppression, the decision to overturn race-conscious admission practices would set the clock back on achieving racial equality and justice for many marginalized and underserved communities.

What’s to Come at New America

New America will collaborate with legal scholars, admission experts, and students – who are at the center of the debate – to raise awareness and share research and advocacy work focused on ensuring students of color have equal access to high-quality and affordable education.

The ultimate goal is to brainstorm and strategize what Congress and the White House can do to ensure that students from all walks of life, especially those from underrepresented and marginalized backgrounds, have an equal opportunity to access higher education.

We will engage with a wide range of experts who have been:

• researching the disparate impact of states that have already banned race-conscious admissions policies,
• writing amicus briefs and op-eds in support of race-conscious admission policies and why diversity matters in higher education,
• working with institutions of higher education to center equity in not just their admissions policies but within their institution as a whole, and
• mobilizing student voices to be at the center and creation of on-campus programs and initiatives that embrace diversity, equity, and inclusion.

Experts include:

• Mayah Emerson Lubin, Lawyers Committee for Civil Rights Under Law
• Dr. Jonathan Feingold, Boston University
• Dr. David Mikey- Pabello, University of California, Los Angeles & Harvard College
• David Hawkins, National Association of College Admission Counseling
• Dr. Oiyan Poon, University of Maryland, College Park
• Dr. Liliana Garces, University of Texas at Austin
• Affirmative Action Coalition at UNC, University of North Carolina at Chapel Hill

Over the next few weeks, we will share video interviews (Listening Tour Series) and blogs about the work of our experts, their thoughts about the future of affirmative action, and what it means for higher education and beyond. We will also convene some of our experts for a panel discussion at New America Washington DC Office in July to discuss federal policy considerations in the aftermath of the decision. From there, we plan to develop a federal policy toolkit that embraces equity, diversity, and inclusion appropriately throughout the higher education ecosystem.

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