By: Asher Moss
Edited By: Jack Pacconi and Anna Dellit
On March 6, 1961, President John F. Kennedy introduced Executive Order 10925 and with it the concept of “affirmative action,” the idea that organizations should take steps to recruit and advance historically marginalized groups. [1]
Seventeen years later, the Supreme Court ruled in University of California v. Bakke (1978) that affirmative action would now be subjected to the strict scrutiny doctrine: policies are presumed invalid unless the government can prove it achieves a “compelling state interest.” Justice Lewis Powell writes for the majority, “diversity that furthers a compelling state interest encompasses… an array of qualifications,” and “race or ethnic background may be deemed a ‘plus’ in a particular applicant's file.” [2] Essentially, while Bakke found that affirmative action satisfied the strict scrutiny requirement, it laid the groundwork for fiery subsequent legal debate.
For the most part, affirmative action in admissions was left intact for forty-five years. However, in 2023, the Court ruled in Students for Fair Admissions v. Harvard that all forms of race-conscious admissions violate the Fourteenth Amendment's Equal Protection Clause and Title VI of the Civil Rights Act of 1964. Both policies ban government-funded entities from engaging in racial discrimination. [3]
Writing for the majority, Justice Roberts established the factors that led to the decision: First, affirmative action policies do not serve a compelling state interest and thus don’t meet the strict scrutiny threshold. Second, universities used an applicant’s race in a “negative manner:” the policy supposedly resulted in disadvantages for other students. Third, “the absence of meaningful endpoints:” the majority's argument that any near-term rollback is unlikely due to the established metrics of governments and universities despite the initial temporary intent of affirmative action. [4]
Since the 2023 decision, universities have grappled with how to further their diversity goals within the Court’s parameters. Harvard Admissions replaced its open-ended essay with short answer questions aimed at forcing students to discuss specific aspects of their life experiences. [5] Many other elite universities have followed suit in grabbing onto Roberts’ lifeline: universities may consider an “applicant’s discussion of how race affected his or her life.” [6] Nevertheless, Harvard saw a 4% decrease in African American students in the Class of 2028 compared to 2027. [7]
The Stanford Center for Racial Justice puts forth other options that can boost racial diversity considering the ruling, including rolling back legacy admissions, implementing test-optional policies, recruiting from specific areas, and percent plans. [8] However, these methods are not proven to unilaterally affect the pool of admitted students. For example, studies on percent plans have found that most students who are admitted through the plan would have been admitted regardless. [9]
Without a clear path for universities, the focus has shifted to inequalities in PK-12. In fall 2021, 42% of Asian students and 34% of White students attended low-poverty public schools. Only 13% of Asian students and 7% of White students attended high-poverty schools. For Black and Hispanic students, the pattern was reversed: only 12% of Black and Hispanic students attended low-poverty schools, while 37% of Black students and 38% of Hispanic students attended high-poverty schools. [10] By the time Black and Hispanic students reach the admissions process, they face disadvantages shaped both by the educational disparities just discussed and by broader systemic inequalities. Standardizing the courses offered at public high schools to better align with college entry requirements could help address some of these disparities and make it easier for Black and Hispanic students to compete on equal footing. [11] However, these programs would require unprecedented cross-state cooperation and funding prioritization from the federal government, both of which are unlikely to occur soon.
Ultimately, the Supreme Court’s overturning of decades of precedent that recognized not just the benefits of racial diversity in universities to students, but the enormous barriers that marginalized groups have had to overcome to gain access to higher education, has forced admissions officers to reconsider their approach. They must now explore new outreach, review, and evaluation practices to ensure they continue to build a well-rounded, academically qualified, and satisfactorily diverse class of students.
Notes:
1. University of California, Irvine: Office of Equal Opportunity and Diversity, “A Brief History of Affirmative Action,” accessed December 2, 2024, https://www.oeod.uci.edu/policies/aa_history.php.
2. Lewis Powell, University of California Regents v. Bakke, 438 U.S. 265 (Supreme Court of the United States, June 28, 1978).
3. John Roberts, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ___ (Supreme Court of the United States, June 29, 2023).
4. Ibid.
5. Michelle Amponsah and Rahem Hamid, “Harvard Overhauls College Application in Wake of Affirmative Action Decision,” The Harvard Crimson, August 3, 2023, https://www.thecrimson.com/article/2023/8/3/harvard-admission-essay-change/.
6. Roberts, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
7. Elyse Goncalves and Matan Josephy, “Harvard Reports Drop in Black Enrollment,” The Harvard Crimson, September 11, 2024, https://www.thecrimson.com/article/2024/9/11/harvard-black-enrollment-drops/.
8. Hoang Pham et al., “Students for Fair Admissions v. Harvard FAQ: Navigating the Evolving Implications of the Court’s Ruling,” Stanford Center for Racial Justice, December 12, 2023, https://law.stanford.edu/2023/12/12/students-for-fair-admissions-v-harvard-faq-navigating-the-evolving-implications-of-the-courts-ruling/.
9. Bryan Cook, “How to Achieve Diverse Access to College in a Post-Affirmative Action World,” Center on Education Data and Policy (Washington, D.C.: Urban Institute, September 2023), 10.
10. “Disparities in Students’ Exposure to Racial, Ethnic, and Economic Segregation,” National Center for Education Statistics, August 2023, https://nces.ed.gov/programs/equity/indicator_d8.asp.
11. Cook, “How to Achieve Diverse Access to College in a Post-Affirmative Action World,” 12–13.
Bibliography:
Amponsah, Michelle, and Rahem Hamid. “Harvard Overhauls College Application in Wake of Affirmative Action Decision.” The Harvard Crimson. Harvard University, August 3, 2023. https://www.thecrimson.com/article/2023/8/3/harvard-admission-essay-change/.
Cook, Bryan. “How to Achieve Diverse Access to College in a Post-Affirmative Action World.” Center on Education Data and Policy. Washington, D.C.: Urban Institute, September 2023.
Goncalves, Elyse, and Matan Josephy. “Harvard Reports Drop in Black Enrollment.” The Harvard Crimson. Harvard University, September 11, 2024. https://www.thecrimson.com/article/2024/9/11/harvard-black-enrollment-drops/.
National Center for Education Statistics. “Disparities in Students’ Exposure to Racial, Ethnic, and Economic Segregation,” August 2023. https://nces.ed.gov/programs/equity/indicator_d8.asp.
Pham, Hoang, Imani Nokuri, Fatima Dahir, and Mira Joseph. “Students for Fair Admissions v. Harvard FAQ: Navigating the Evolving Implications of the Court’s Ruling.” Stanford Center for Racial Justice. Stanford Law School, December 12, 2023. https://law.stanford.edu/2023/12/12/students-for-fair-admissions-v-harvard-faq-navigating-the-evolving-implications-of-the-courts-ruling/.
Powell, Lewis. University of California Regents v. Bakke, 438 U.S. 265 (Supreme Court of the United States, June 28, 1978).
Roberts, John. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ___ (Supreme Court of the United States, June 29, 2023).
U.S Department of Labor. “Affirmative Action.” Department of Labor. United States Federal Government, 2019. https://www.dol.gov/general/topic/hiring/affirmativeact.
University of California, Irvine: Office of Equal Opportunity and Diversity. “A Brief History of Affirmative Action.” www.oeod.uci.edu. University of California. 2024. https://www.oeod.uci.edu/policies/aa_history.php.
