Affirmative retraction

On June 29, in Students for Fair Admissions, Inc. v. Harvard College (SFFA), the U.S. Supreme Court decreed by a vote of 6-3 that the admissions systems at the University of North Carolina (UNC) and Harvard College were racially discriminatory, in violation of the 14th Amendment and of Title VI. The case effectively overturned almost five decades of legal precedent allowing colleges and universities to consider the race of applicants as one of many factors in a holistic admissions review process.

“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 end points,” stated Chief Justice John Roberts for the majority. “We have never permitted admissions programs to work in that way, and we will not do so today.”

On the other hand, Justice Sonia Sotomayor, writing in dissent, stated:

For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity . . .  Today, this Court . . .  subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.

At the time this ruling was issued, I was completing a manuscript for a new edition of a law school textbook, Education and the Law, which I co-author with Kevin Welner, a professor at the University of Colorado Boulder who has published about different aspects of affirmative action. In the wake of the decision, we sat down to discuss the case and its impact.

Kim: Let’s talk first about what the Supreme Court did in SFFA and how it got there. The Court provided a bunch of reasons for striking down Harvard and UNC’s admissions programs, but it appeared most upset about the fact that their consideration of applicants’ race resulted in penalizing white and Asian or Asian American applicants to achieve racial balance. What’d you think of its reasoning?

Welner: Roberts and Justice Clarence Thomas have long framed Brown and the Equal Protection Clause as demanding race-blind governmental policies. Roberts sees race-conscious admissions policies as unfair because admissions decisions are a zero-sum game — if someone wins, someone else must lose. That’s partially true, but it also begs the question of how admissions processes are “unfair” in a much broader sense, even before the applicant picks up the pen (or moves the cursor, as it were). Justice Ketanji Brown Jackson’s dissent makes the case that not expressly considering race is considerably more unfair.

Roberts also opined about how racial categories themselves are too broad and ill-defined. What’d you make of that?

Kim: I find it ironic that the majority professed to crave greater recognition of the difference between East and South Asians, or between whites from Appalachia and Atherton, while curtailing the ability of colleges to explore those differences.

But I was also struck by how the authors of the majority and concurring opinions wrapped themselves in a cloak of Brown v. Board righteousness, chronicling the Supreme Court’s diligent efforts to decrease racial discrimination. If you didn’t know better, you’d think the Court was going to uphold Harvard and UNC’s admissions programs. But then, without missing a beat, it struck those programs down.

Welner: Title VI and the Equal Protection Clause were adopted specifically to counter racist policies targeting African Americans and other minoritized people. Neither law was an attempt to prevent race-conscious policies designed to create greater equality or diversity. The justices presented a curated version of history, just as they did when overturning precedent around areas like abortion and gun control legislation.

Kim: In stark contrast to the majority, Justices Sotomayor and Jackson wrote at length in their dissents about how historical and societal discrimination continues to justify race-conscious admissions programs. But this justification has never been on solid footing with the Supreme Court, has it? In the 1978 Regents of the University of California v. Bakke case, which narrowly legitimized race-conscious admissions, Justice Lewis Powell rejected remediation of past discrimination as a justification for race-based action in the present.

Welner: Some of the blame there lies with the University of California’s decision in Bakke to forgo that remediation argument, which would have required the university to acknowledge its own role in harmful discrimination. In any case, Powell and later swing justices in affirmative action cases were only willing to uphold “diversity,” not societal discrimination, as a compelling reason for race-conscious admissions policies.

Kim: While we’re on the subject of the dissents, I found Justice Jackson’s opinion remarkable in a number of respects, including its focus on social science research. And that hypothetical!

Welner: During oral arguments, Justice Jackson described two hypothetical UNC applicants: a white student who might write in his application essay about his six previous generations who had attended the university and a Black student who might tell about his prior generations who had been banned or otherwise blocked from doing so. Her dissent then fleshes out that hypothetical with history and social science research to show how different policies — from slavery onward — have provided the white applicant’s ancestors with benefits denied to those of the Black applicant, with those benefits then adhering to the white applicant. It’s an unusual and, in my view, very effective and persuasive dissent. And I’m guessing it prompted the last section of Roberts’ majority opinion.

Kim: I think lots of us zeroed in on that paragraph of his opinion:

[N]othing 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. But . . . universities may not simply establish through application essays or other means the regime we hold unlawful today . . . A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.

What does this passage mean, as a practical matter? How would considering the important role of race in an applicant’s life (OK) be different from considering an applicant’s race as part of a holistic review of the application (not OK)?

Welner: I think colleges (and, unfortunately, lawyers) will be studying that question in the upcoming years. Technically, racism will now be treated like any other experience and race like any other characteristic. So just as applicants are not prohibited from writing about the impact of their most recent vacation or a serious car accident on their life, they aren’t prohibited from explaining the import of their race.

Kim: But the message is clear that they will need to sift out some non-racial attribute from the race-based experience. I can already sense the pain of applicants who will struggle to disassociate themselves from their race — that and the rumbling sound of a million college-essay-writing consultants filing their LLC applications.

Welner: We have probably entered a new era of “How to Write About Race While Not Writing About Race.” Wealthier applicants will likely have the assistance of those LLCs as they write their essays and lawyers ready to file a claim on their behalf that a college has overstepped by considering race through those essays.

Kim: So do you see the potential for consideration of race by other means as the topic of our next wave of litigation?

Welner: I would say so. Anti-affirmative-action advocates have made very clear that they are itching to litigate further. In theory, a college focusing heavily on essays by applicants describing how they grappled with or overcame obstacles such as structural racism could end up increasing its proportion of admittees of color. But those colleges know that doing so would likely prompt litigation before a federal judiciary that is increasingly hostile toward any institutional actions that involve race.

Kim: Right. But beyond the essays, colleges could begin (and some already have done so) scaling back on supposedly “race-neutral” practices that disproportionately benefit white students — such as “tips” for athletes or children of alumni, donors, and faculty — and instead emphasize criteria and programs that could increase racial diversity such as those benefitting students from low-income or multilingual families or who will be the first in their families to attend college.

Welner: Agreed. Unfortunately, we know — from states like California that prohibited race-conscious admissions policies years ago — that shifting to these race-neutral proxies still leaves in place a substantial drop in racial and ethnic diversity.

Kim: Can we discuss the opinion’s impact on preK-12 schools? My first impression is that SFFA is limited to higher education and has no direct impact on the ability of elementary and secondary schools to pursue any of the diversity strategies permitted after the 2007 Parents Involved v. Seattle case. What’s your view?

Welner: The case has no direct impact on preK-12 or even on things like race-conscious scholarships. But the six justices left no doubt about where they’d fall on subsequent litigation challenging the use of racial categorizations of almost any form — with the possible exception of policies that do not benefit the categorized group, such as using race as part of the “reasonable suspicion” for law-
enforcement stops near the border
(as Justice Sotomayor noted).

Kim: One last question: You’ve written extensively about opportunity gaps in education and the limited ability of formal schooling to address society’s failure to close those gaps. Can you place the affirmative action debate in the larger context of societal inequity?

Welner: Admissions experts in higher education refer to the “eligibility pool” of students for a given college. These are the potential applicants who are qualified and prepared to succeed at the college. Opportunity gaps arising from racialized poverty wreak havoc on the eligibility pool, undermining the development of countless brilliant children. The lack of diversity at many selective colleges and universities is more attributable to these opportunity gaps than to any issues around the availability of affirmative action. Affirmative action policies at selective colleges are just a Band-Aid placed on a much larger problem.

Kim: And that Band-Aid, which SFFA has effectively ripped off, largely applies to the 16% of colleges that accept less than half of their applicants. The vast majority of colleges admit most or all students who meet minimum qualifications, without any consideration of race. But the opportunity gap you speak of affects all postsecondary attainment, as well as other vocational or career outcomes, doesn’t it?

Welner: It does, although the gap is particularly devastating in the selective admissions context, which helps determine who gets to embark on what we might think of as a leading career pathway. Affirmative action and graduation from elite institutions have played an indispensable role in providing educational opportunities for so many future doctors, lawyers, bankers, and other leaders. As just one example, having fewer Black doctors will likely harm health care for underserved populations and impair the diversity of the nation’s future research workforce. These admissions policies may not be the most important driver of racial inequality in the U.S., but that doesn’t mean SFFA won’t still have very harmful fall-out effects.

This article appears in the September 2023 issue of Kappan, Vol. 105, No. 1, pp. 60-61.