In the Wake of Affirmative Action

On June 29th, 2023, in a historic decision, the U.S. Supreme Court effectively ended race-conscious admission programs at colleges and universities across the country. As a result, many Americans are feeling hopeless and wondering what this decision means for not only the future of higher education but for students of color in primary and secondary schools as well. 

Three members of the steering committee for the Our Compelling Interests book series have collected their thoughts on what this means for us as a country and as individuals looking to inspire change. 

by Gary Orfield, Professor of Education, Law, Political Science and Urban Planning

Co-Director, Civil Rights Project/Proyecto Derechos Civiles at UCLA

The U.S. Supreme Court has taken away affirmative action, the modest tool that America’s colleges used to create a modicum of integration in an unequal society in the midst of a vast demographic change.  The decision rejected the views of the nation’s college leaders, the findings of extensive research and the legal precedents that had governed the issue for nearly a half century.  It took place after a President elected after a campaign tarred by racial demagoguery by an overwhelmingly white electorate had the rare opportunity to replace one-third of the Supreme Court in a single term.  The same far-right legal group that had twice recently lost similar cases in the Supreme Court and was deeply involved in selecting the candidates who  President Trump nominated to thes Supreme Court, had a historic win after they were seated.   The Supreme Court has the final authority in our system to define the meaning of the Constitution and laws and colleges must obey its decision in the Harvard and UNC cases.  That does not mean that higher education needs to agree with the decision and it certainly does not mean that they should overinterpret it and stop other positive actions that have not been forbidden.  I believe the decision was a serious mistake and that those who care about equity in our colleges should carefully study its consequences and document its effects, because, in the long run, we will need evidence for new race conscious policies to solve inequalities deeply rooted in  historic and current racial discrimination. There is no prospect that the decision will be reversed by the current Supreme Court whose six conservative members showed no interest in the legal and empirical arguments and data that were submitted at great length  by scholars and national research and higher education organizations.  So, it is important to think now about what can be done now within the boundaries the Court has set.  Extensive research shows that the access of Black, Latino, and Indian students to selective universities will seriously decline.  It also shows that there is no good proxy for race and, for example, that focus on poverty will fall far short and be much more expensive than affirmative action.  But there are things that can be done which, though falling well short of affirmative action, will help significant groups of students.  The first one is working to head off the predictable depression and discouragement of students of color and their supporters.  Rights have been limited and there will be damage.  It will be far worse if people give up trying and, for example, if students of color do not apply to competitive colleges.  Universities and their staffs and community leaders  must make every possible effort to show that the colleges want them and invest strongly in recruitment.  Colleges need to regain as much control as possible over their admissions and student support decisions.  One step should be to avoid any simple one-dimensional rating system that courts and conservative litigators could treat as a colorblind measure of merit and require colleges to admit going right down the list on that single dimension.  That is part of the implicit strategy used in the attack on affirmative action in the Harvard case..  If Asian students have a highly disproportionate representation among top scorers on tests and grades,the plaintiffs argued,  if they do not get a similar portion of the admissions it must be discrimination.  But no test claims to be a measure of native capacity to learn or personal “merit.”   Test and grade outcomes are strongly related to family education and resources and affected by positive schooling experience throughout pre-college life.  The results are related to success in college courses but do not measure commitment,  creativity, leadership, cross-cultural understanding,  dedication, public service goals  and a number of other dimensions that contribute to the college community and are involved in lifetime success and contributions to professions.  That suggest that the current suspension of mandatory admissions testing should be continued and colleges and researchers need to intensify work on measuring achievement relative to opportunity, and broaden criteria to other key dimensions.  Researchers and assessment organizations must take a strong stance in broadening the criteria and dimensions of choice.  I believe that courts have neither the competence nor the desire to get into the internal workings of colleges and that well reasoned multi-dimensional methods sensitive to the inequalities that many students coming from weak preparation have faced can be defended in court and in public.   One of the advantages of a bad loss that looks irreversible for some time, is the necessity of thinking about what really needs to be done to deal with the underlying problems.  Affirmative action was a genuinely useful but limited response.  It seriously affected only the small minority of colleges that are seriously competitive, but there are race related problems and challenges at all colleges and most of the students of color are in far less competitive colleges.  Affirmative action was a band aid to try to help some students gain access to excellent education even though students of color had very unequal preparation.  Since the abandonment of school  desegregation efforts, caused largely by Supreme Court decisions in the l990’s to 2007,  there has been little effort to deal with the blatant inequality of the schools that prepare students of color.   We need to face the profound discrimination involved in giving students of color schools that are, on average, far weaker in all the most important dimensions for college preparation—experienced expert teachers,  excellent pre-collegiate courses and counseling, networks with strong colleges,  the experiencemuch higher levels of competition with well prepared classmates, and many others.  I think that the research world and the leaders of higher education should now say, the band aid has been ripped off.  Now we can see more clearly the underlying moral and educational inequality. Let’s create research that documents this in ways that will be clear to fair-minded readers, end the false assumption that all students have had any kind of reasonable chance to develop their talents before college, and turn toward documenting the systematic inequality as a form of discrimination, and dedicate themselves to research and experimentation to make it more equal.  Colleges understand what students need to succeed and anyone who has taught entry level course in big public universities has seen the shockingly unequal preparation given to very bright students of color in many schools.  Experts and leaders in higher education should spell out what is needed excluded students to access our excellent schools and how we can create more such opportunities and should present plans and demands.  If you slam one door on deserving students and harm the university communities, it should be our plan to reach deeper and open a much bigger door.  

by Thomas J. Sugrue, Julius Silver Professor; Director of the Cities Collaborative, New York University

More than two decades ago, I wrote an expert report for the University of Michigan affirmative action cases, Gratz and Grutter v. Bollinger. My task was to consider the past and present of racial separation and division in the United States with a focus on Michigan. My conclusions were sobering. I documented “persistent and pervasive racial separation” in Michigan’s housing market and public school systems. “Residential and educational distance,” I argued, “fosters misconceptions and mistrust,” and worsens racial inequality. “It creates racially homogeneous public institutions that are geographically defined, limits the access of many minorities to employment opportunities, and leads to racial polarization in politics.” I wrote of racial and ethnic disparities that are “a legacy of the past which we have not yet overcome.”

Affirmative action in college admissions was one tool to disrupt the patterns of racial separation that I described, but that tool is no longer available to us. But affirmative action in higher education was never intended to be a panacea for America’s long history and troubled present of racial inequality. Its beneficiaries were limited to those who applied to a small fraction of elite private and flagship public universities. Those students of color, in the aggregate, did spectacularly well. Affirmative action expanded the representation of people of color in professions where they had long been grossly underrepresented, including high education itself. As Derek Bok and William Bowen reported in their pathbreaking book, TheShape of the River, published just before the Michigan cases went to the Supreme Court, Black graduates of elite colleges and universities were also highly engaged citizens. More than their white classmates, they gave back to their communities and society at large through public service. They were more likely to be involved in civic activities than their white classmates. But affirmative action, for all of its benefits, was never enough. In fact, its emphasis on a small portion of the population and on institutions like Michigan or Chapel Hill or Harvard could sometimes distract from the deep-rooted inequities that I described in my report—unequal education throughout the K-12 years, discrimination in housing markets, disparities in health and life expectancy (revealed especially during the COVID-19 pandemic), and racial divisions and distrust in our political system (which has worsened in recent years). At the root of these problems was the segregation of neighborhoods, schools, and social networks by race and the equitable distribution of resources across racialized spaces. Metropolitan areas across the United States have witnessed modest declines in segregation, but the largest metros, especially in the Rustbelt, including Chicago, Cleveland, Detroit, and Milwaukee remain highly segregated despite gains. Demographer John Logan, in his review of 2020 census data concludes that“segregation, especially between whites and blacks, is a durable feature of America’s urban landscape.” Educational segregation by race has been even more persistent, argues Gary Orfield, resulting in huge racial gaps in college attendance and completion. We have not overcome.

In the wake of the Supreme Court decision striking down affirmative action in higher education, it is time to turn our attention in a more concentrated way to the generation of students who will be applying to college in a decade or two from now. It is time to systematically rethink the pipeline question-- to address the profound inequalities that affect people of color at every stage of the life course, with still devastating long-term consequences for education and so much more. We especially have to focus on the fifty percent of children of color who will spend part or all of their childhood living beneath the poverty line. Economic insecurity—compounded by racial discrimination—creates endemic insecurity beginning in the crib. Parents struggle to make ends meet in a housing market, paying too much of their income on inflated rents. The supply of good quality affordable housing in the United States has plummeted in recent decades. Children of color are more likely to be exposed to environmental harms from lead paint to contaminated soil to mold, suffering allergies and asthma. When parents are forced to move frequently, the entire family experiences what public health scholar Mindy Fullilove calls‘” root shock,” uprooted from their homes, their social networks, and their schools, subject to debilitating stress. And it’s hard for adults to focus on their children’s educational needs when they toil in low-paying jobs, with unpredictable work schedules, and few, if any, sick days or family leaves. Economic insecurity and household instability are strongly correlated with success or failure in school. And public education—especially in districts that serve large numbers of non-white children—is riddled with systematic problems from high absenteeism, inexperienced teachers, pressure to “teach to the test” rather than motivate students with innovative pedagogies, and “zero tolerance” disciplinary policies that bring students into contact with the criminal justice system at perilously young ages. If we are to achieve the noblest goal of affirmative action—to dramatically expand the number of students of color in our colleges and universities, elite or not—we need to start in the cradle, not in the admissions office. Thomas J. Sugrue is a Silver Professor of Social and Cultural Analysis and History at New York University. Born and raised in Detroit, he is the author of many books, including the Bancroft Prizewinning, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit.

by Michele Warman, Practitioner in Residence at Columbia Law School

On June 29, 2023, the Supreme Court’s majority in Students For Fair Admissions, Inc. v. President and Fellows of Harvard College pronounced affirmative action dead, putting blinders on, and blowing past decades of legal precedent, the facts, and the 14th Amendment’s guarantee of equal protection under the law.  The holding was not unexpected, given the Justices’ earlier writings, but the decision was wrong and destructive.  It is imperative to call out the Court’s tunnel vision and blunderbuss opinion, look clear-eyed at our country’s history, constitutional goals, and democratic needs, and redouble efforts to diversify our academies and advance racial equality.  The Court’s majority refused to engage with the actual history of the 14th Amendment.  The Reconstruction Congress that adopted the 14th Amendment simultaneously enacted numerous race-conscious laws to promote Black equality.  To claim that the 14th Amendment is “color blind” is simply ahistorical.The majority looks straight past the Court’s opinions in Grutter and Fisher, which determined affirmative action in higher education to be constitutional.  These long-established cases held, on practically identical facts, that limited race-conscious considerations in college admissions furthered a compelling educational interest in student body diversity and met the constitutional requirements of “strict scrutiny” for race-conscious policies.  And the majority then simply ignores the record before it –  expert testimony, witnesses, scholarly studies, amici briefs from across professions, surveys, and detailed district and appellate court findings describing the compelling interest of diversity in higher education -- and instead declares this interest “elusive,” and “inescapably imponderable.”  Extensive evidence was brought forward to confirm the value of diversity in training future leaders, producing new knowledge, preparing productive citizens, and enhancing empathy, cross-racial understanding, among other specific goals.  Students For Fair Admissions did not even contest diversity’s compelling interest.  Were the compelling “intangible considerations” articulated in Brown also “elusive” and “inescapably imponderable?” With blinders securely on, the majority mischaracterizes the universities’ actual consideration of race in admissions practices.  The universities did not select or reject students based on racial categories.  Rather, they performed individualistic holistic reviews of applicants, where race was one factor considered, among many others, including academic interests, talents, leadership capacity, and contributions to socioeconomic and geographic diversity, as permitted by Grutter and Fisher.  The “broad” categories of race were reference points, not student body determinants.  Moreover, there was no evidence that the universities used race in a “negative” manner, disadvantaging any applicant.  There was no mathematical formula; no zero-sum.  The Court’s claim that the universities were “stereotyping” by expecting diverse students “to express some characteristic minority viewpoint” is similarly groundless.  The record showed just the opposite:  diversity was sought to dispel this very stereotyping.  And while the Grutter Court, in 2001, hoped that race-conscious admissions would no longer be needed 25 years hence, it did not stamp an expiration date.   What is true is that race still matters in this country, individually and societally.  What is also true is that as human beings we are inevitably and inexorably shaped by the societies we inhabit – by our social structures, prejudices, community resources, histories, ethnicities, and race.  Miraculously, the majority concludes with one eye slightly open: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”  Some recognition of the obvious:  that one’s experience of race can affect their life, aspirations, and contributions.  So, with our eyes open, we must expand efforts, within this changed law, to make good on the 14th Amendment’s promise of equality.  We need more outreach programs to identify, nurture, and recruit diverse talent:  university partnerships with community colleges, linkages with under-served schools (pre-k through 12), academic enrichment, college preparation and counseling, and financial aid sources, among them.  But outreach is not enough.  Twenty years after Proposition 2 banned affirmative action in Michigan, and despite extensive outreach, African American enrollment at University of Michigan is down 44%.  Twenty-five years after Proposition 209 banned affirmative action in California, African American enrollment at University of California’s most selective colleges, Berkeley and UCLA, remains below pre-Proposition 209 levels, initially dropping by 50%.   Colleges and universities must continue to engage in holistic review.  Not all students have the resources or academic support to pursue near perfect grades or test scores; and these metrics cannot forecast the drive, understanding, empathy, and life experiences that productive citizens require.   Other holistic considerations – community and family service, vision and passion for learning, moral courage, intellectual risk-taking, curiosity, collaborative spirit, uniqueness of thoughts, experiences, ideas, talents, and socioeconomic circumstances, to name a few – are weighty and equitable tools for assessing human potential.  Schools must reexamine whether legacy, donor, athletic, and faculty’s children admissions considerations align with institutional values.  They must continue to pursue diversity in their student bodies, faculties, research, and curricula to support wide-ranging learning.  The very health of our democracy depends on holistically educating.Let it not be missed: colleges and universities can consider “an applicant’s discussion on how race affected his or her life, be it through discrimination, inspiration, or otherwise.”  And they should.