The Supreme Court‘s 6-3 Republican-appointed majority could soon end race-conscious affirmative action admissions policies at universities, though some professors say colleges may still promote diversity and inclusion, depending on the scope of the justices’ ruling.
Race-based affirmative action policies have been used to boost college admission opportunities for disadvantaged racial minorities in the United States since the 1960s. In the upcoming cases against the private and public institutions of Harvard University and the University of North Carolina, respectively, challengers argue those same affirmative action practices have disproportionately harmed Asian American applicants and that institutions should amend their policies to adopt “race-neutral” standards, according to the conservative group Students for Fair Admissions.
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Professors and legal experts alike have largely signaled their belief that the six conservative justices are poised to reject affirmative action, especially given Chief Justice John Roberts‘ perspective on the matter since at least 2007, when he wrote in the Parents Involved case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
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“It seems likely that affirmative action will be held to be unconstitutional,” UNC Constitutional Law Professor Mary-Rose Papandrea told the Washington Examiner, noting her belief that depending on the scope of the decision, policies that promote economic and class diversity could remain in place.
“I think one of the concerns that I see coming through in the UNC brief is that … efforts to promote economic diversity or socioeconomic diversity will not necessarily lead to racial or ethnic diversity,” Papandrea said. For example, out of 13.4% of North Carolina’s population in poverty, 70.1% are white, according to U.S. Census data.
Other legal experts, including Harvard Law School professor Noah Feldman, who specializes in constitutional studies, contends it is possible that the UNC and Harvard case opinions could be “written so narrowly that it would still be legal for universities to say that they merely hoped to achieve racial diversity. But taking any race-conscious decisions to achieve that goal would be illegal,” according to his Oct. 18 Washington Post op-ed.
Voicing agreement with Feldman, Papandrea cited states such as California and Michigan, which have both banned affirmative action policies through respective ballot initiatives. But despite banning race-conscious admissions, “They still talk about diversity,” Papandrea said.
“So I expect that UNC and every other school around the country will likewise continue to talk about diversity,” Papandrea added.
Although California first removed affirmative action policies in 1996 through a ballot measure, the University of California reported having its most diverse class of freshman in fall 2019, according to data from the university. And the University of Michigan maintains a Diversity, Equity, and Inclusion Office that leads initiatives including the “Equity & Inclusion Strategic Plan, First Generation (FirstGen) Students initiative, Inclusive Teaching, and Undocumented/DACA Student Resources,” according to its webpage.
SSFA, the group that is suing in both the Harvard and UNC cases, has pointed to the 2003 Grutter v. Bollinger case, which affirmed the partial use of race in admissions at the University of Michigan in a 5-4 opinion, so long as it didn’t rely on race as a sole deciding factor.
While U-M did not impose a racial quota system, which was ruled unconstitutional in the 1978 Regents of the University of California v. Bakke decision, Justices Antonin Scalia and Clarence Thomas dissented in Grutter, arguing that because the school still used race as a factor, it should be outright considered illegal.
Given the court’s increasingly conservative lineup of justices, it is likely the high court will decide affirmative action policies will no longer be legal at both private and public colleges, Feldman argued in his op-ed.
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Both Feldman and Papandrea agree that elements such as “diversity statements” might remain a routine part of college applications, but any decision on whether to accept a student’s application won’t be based on racial factors once the expected high court judgment is finalized.
While universities might still consider factors such as first-generation college student status and economic and class designations, information such as ZIP codes could even be “rejected by the courts as race-based affirmative action by another name,” Feldman wrote.
Mark Smith, a distinguished scholar at the Ave Maria School of Law and host of the Four Boxes Diner constitutional law podcast, told the Washington Examiner that if the court does rule against affirmative action, “Colleges would then need to remove references and other vestiges of racial considerations from their websites” out of necessity to avoid the potential for any additional costly lawsuits.
“Those statements could be used against them if they are subsequently sued for race discrimination,” Smith said.
Harvard recently disclosed that it spent $27 million in legal fees and expenses for the admissions lawsuit and related Justice Department investigation, according to the New York Times. It is not immediately clear how much UNC has spent on these efforts.
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For Smith, he contends that “any college that continued to consider race after the Supreme Court decision would find themselves risking being severely punished financially and reputationally with future lawsuits.”
“If I were them, I would no longer ask applicants about race on the application, which would likely prevent the schools from even knowing the race of the applicants,” Smith added.
