Affirmative Action on Trial

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What Does the Future Hold for Race-Conscious Admissions?

Last year, nearly 43,000 people applied to be a part of Harvard University’s Class of 2022. In the spring, 95.4 percent learned they had been rejected. 

Those accepted constitute the most ethnically and socioeconomically diverse class in the school’s nearly 400-year history. Not everyone, however, saw this as a sign that one of America’s most elite universities has truly become a place of equal opportunity. 

In October, Harvard’s top administrators spent three weeks in federal court testifying in defense of their institution’s race-based admissions process. The much-anticipated trial was the culmination of a 2014 lawsuit filed by the anti-affirmative action group Students for Fair Admissions (SFFA), which claims that Harvard discriminates against high-achieving Asian American applicants in favor of less-qualified students from other racial and ethnic groups — including those who are white. 

Much of the media coverage surrounding the Harvard case has focused on its potential to reach the U.S. Supreme Court, ushering in the possibility that the majority-conservative bench could overturn the use of affirmative action in higher education. SFFA’s founder and president, Edward Blum, is a leading opponent of race-based admissions and has helped organize multiple legal battles against the practice, including the 2016 Supreme Court case Fisher v. University of Texas. 

Though Blum and client Abigail Fisher lost that case — in which they alleged that the University of Texas at Austin’s (UT Austin) consideration of race in the admissions process discriminated against white applicants.— many now see the Harvard lawsuit as a gateway for Blum to once again bring his cause before the country’s highest court. And although SFFA’s attorneys emphasized that “diversity is not on trial” in the Harvard case, concerns regarding its potential implications for affirmative action were amplified by the confirmation of conservative Brett Kavanaugh to the Supreme Court just nine days before the trial began.

Peter McDonough
Peter McDonough

Peter McDonough, JD, vice president of the office of general counsel for the American Council on Education (ACE), cautions that media speculation regarding the Harvard trial may cause more concern than is necessary, at least for the time being. Should the university or SFFA decide to challenge the ruling — whatever it may be — the appeals process would take several years and would carry no guarantee that the Supreme Court would even agree to hear the case. A more immediate worry is that colleges and universities may be discouraged in their diversity efforts because of the threat of lawsuits from groups like SFFA and because of the Trump administration’s opposition to affirmative action, he says. 

“Schools are wise to recognize that more questions will be asked about how they do [admissions], but if this trial has a chilling effect that causes schools to shy away from what they fundamentally believe in terms of the educational benefits derived from a diverse student body, our entire country [suffers],” says McDonough.  

In the past, military leaders and executives from Fortune 100 companies have filed amicus briefs and spoken out in support of race-conscious college admissions — specifically, during Fisher v. Texas and in earlier cases involving the University of Michigan (UM) — illustrating affirmative action’s powerful influence. Many sectors of American society and the economy “have seen firsthand the benefits that derive for this country from diverse student bodies and campuses, and they do not want that to be chipped away at,” McDonough says. 

Even in college admissions cases where the Supreme Court has ruled in favor of the plaintiff, the justices’ decisions have focused on the legality of specific race-conscious policies, not affirmative action itself, he notes. In the 2003 case Gratz v. Bollinger, the court ruled against UM for having a points system that gave higher scores to underrepresented applicants, explaining that race or ethnicity alone cannot be considered a qualification for acceptance. That same year, the court decided in favor of UM in Grutter v. Bollinger, ruling that it was constitutional for the university’s law school to make admissions decisions based on the goal of building a diverse student body, even if that required admitting underrepresented candidates over white ones when both parties were equally qualified. 

In Fisher v. University of Texas, while the Supreme Court ruled against Fisher’s claims of discrimination, it emphasized that UT Austin and other institutions should only consider race and ethnicity as a factor when other methods, such as preferential admissions for low-income students, don’t result in a diverse student body or are simply unfeasible.   

SFFA cited this ruling during the Harvard trial and called as its key witness The Century Foundation (TCF), a progressive think tank that has long maintained that colleges and universities can in fact achieve diversity using race-blind admissions policies. According to the organization’s research and as it argued in its testimony, preferential admissions based on socioeconomic status is a more equitable and effective method for creating diverse student bodies. TCF did not respond to a request for comment. 

Other higher education experts, including McDonough, disagree. “As Harvard [explained] in the courtroom in Boston and as institutions and commentators have noted, the alternatives to the consideration of race and ethnicity have been found … to be insufficient for the objectives schools are trying to achieve,” he says. 

Rachel Baker
Rachel Baker

Rachel Baker, PhD, an assistant professor in the University of California, Irvine School of Education, has studied this issue at length. She says multiple reports have found that “there really is not a reasonable level of socioeconomic-based affirmative action that can replicate the level of racial diversity that we see when we use race-based affirmative action.” 

While Baker was not involved with the Harvard trial, she has done extensive research into college selectivity, race, and income. In a study using an intricate simulation model, she and her team found that colleges could achieve only moderate levels of racial diversity through extensive efforts to recruit and support low-income students. This type of race-blind effort, and the amount of financial aid it would require, is simply unsustainable for most higher education institutions, she explains. 

“We’re not talking about something that is a little expensive, so schools just wouldn’t want to do it,” Baker says. “It is well outside the bounds of what schools could possibly do.” 

While there is some correlation between race and socioeconomic status, one cannot serve as a proxy for the other, she argues. In addition, Baker notes that it is normally only more selective institutions that have race-based affirmative action policies. In the simulation model, eliminating the practice of preferential admissions for underrepresented ethnic and racial groups at highly selective institutions caused “their levels of racial diversity to go down by approximately 80 percent,” she says. This practice also meant that more students from underrepresented racial and ethnic groups enrolled in lower-ranked, less selective institutions. 

Jonathan R. Alger
Jonathan R. Alger

Jonathan R. Alger, JD, president of James Madison University and a leading attorney on civil rights in higher education, believes that much of the pushback against race-conscious admissions is rooted in public misunderstanding of holistic admissions processes and why institutions choose certain students over others. 

“Admissions is an art as well as a science, … so the idea that it can be narrowed down to numerical criteria is simply not the way it works at most institutions and certainly not at Harvard,” says Alger, who served as assistant general counsel for UM during the Gratz and Grutter cases in 2003. “It’s not about putting together a group of isolated individuals; it’s about [creating] an entering class where everybody is going to be part of the learning environment and everybody has something to contribute.” 

The apparent confusion around the purpose and logistics of affirmative action is understandable considering its evolution over the decades. “Since the very beginning [of affirmative action in higher education], which dates back to the 1960s and ’70s when colleges and universities first began very deliberate efforts to diversify, we’ve seen a counterattack or challenges to those programs,” Alger explains. 

Originally, colleges and universities instituted affirmative action programs as a means of remedying past discrimination, a value upheld by the Supreme Court when those programs faced early opposition. Alger says the rationale for these types of admissions models, however, has shifted over the years to focus more on the educational benefits of having a diverse student body. 

“Race is just one of many factors.— along with gender, socioeconomic status, geographic differences, and family background — when you think about putting together an entering class in its totality,” he says. While an institution like Harvard sees thousands of academically qualified applicants, that does not mean the university can or should only admit candidates who have perfect GPAs or scored in the top percentile on the SAT, Alger adds. Rather, creating a multicultural campus requires admitting applicants who represent a variety of academic backgrounds, extracurricular interests, and sociocultural identities.

He notes that during the UM trials, both the defendants and plaintiffs quoted Martin Luther King Jr.’s famous “I Have a Dream” speech in justifying their causes. Both sides, he says, believed that college applicants should “be judged on the basis of the content of their character and not on the basis of the color of their skin.”  The plaintiffs argued that this ideal could be achieved by simply eliminating race as a consideration in admissions. The university, on the other hand, defended the need to actively work toward this goal given the present realities. 

“I think a fascinating part of this whole argument is that there is agreement on the end goal, … of getting to the point where race should no longer have to be a factor,” Alger says. “It’s how you get there that makes the big difference.”

Alger and McDonough concur that current negativity regarding race-based admissions is rooted in today’s political climate and the rejection of diversity and equality as basic values. They point to the Trump administration’s rescission of Obama-era guidelines for affirmative action in higher education and the U.S. Department of Justice’s expressed support of SFFA as proof of this assertion.

 “You’re seeing a frontal attack on the very concept of diversity as a compelling interest, … given the change in the composition of the Supreme Court and a current administration that is opposed to these policies in general,” says Alger. 

Experts say it could take several months before federal Judge Allison Burroughs, who presided over the Harvard trial and is a 2014 Obama appointee, issues a ruling. And while both sides are expected to appeal a verdict not in their favor, there is evidence that Harvard is already taking steps to avoid future accusations of racial bias. In the latest edition of its annual guidelines for admissions officers, the university stresses that race should not be considered as a factor when assessing the “personal rating” portion of its holistic admissions process.

The guidelines do, however, state that officials are to consider ethnic and racial identity when determining whether a candidate “may contribute to the educational benefits of diversity” on campus.●

Mariah Bohanon is the associate editor of INSIGHT Into Diversity.