By Taylor Dumpson
The U.S. Supreme Court’s decision in Students for Fair Admissions v. University of North Carolina and the sister case against Harvard College has shaken the foundation of higher education admissions law and threatens to impair access to opportunity for many highly qualified Black and Brown students. But it doesn’t have to be this way. Despite the ill-reasoned opinion and the undermining of race-conscious admissions, there are fair-minded, lawful policies and practices that universities can engage in to ensure pathways to higher education — and by extension the professional world — remain open to students from all backgrounds.
So, what exactly did the Supreme Court hold? Using a color-blind approach, the court ruled the Constitution prohibits Harvard and UNC’s use of an applicant’s race as a “plus” factor among many other factors in a holistic admissions process — among them legacy status, athletics or military service. Rather than overrule Grutter v. Bollinger, a critical 2003 case upholding the use of race-conscious admissions policies under the Equal Protection Clause, the court undermined affirmative action by revising the Grutter strict scrutiny standard, making it more challenging for universities to create plans that survive that standard. The Supreme Court imposed further restrictions on the already limited use of race in admissions: the policy must have a time limit, the goal it pursues must be measurable and race cannot be used as a “stereotype” or as a “negative.” Applying this new interpretation, the Supreme Court struck down UNC and Harvard’s policies for failing to satisfy these limitations, but it did not strike down race-conscious policies at large.
By undermining 45 years of precedent authorizing race-conscious admissions under the guise of “equality,” the court disregarded the reason affirmative action policies, like holistic admission plans, were initially created. These policies were born because qualified applicants of color were systematically denied access to professions based on the color of their skin well after the Fourteenth Amendment was adopted.
To help remedy this deeply embedded injustice, former Presidents John F. Kennedy and Lyndon B. Johnson issued executive orders in the 1960s, demanding government contractors begin taking “affirmative action” to ensure meaningful integration in the professional world. Similar race-conscious efforts were already underway in the education context, like race-based K-12 bussing in the desegregation era, and the eventual creation of the holistic college admissions process in the 1970s — affirmative steps to promote real equal opportunity.
In Regents of University of California v. Bakke (1978), the court rejected the remedial justification for permitting race-conscious admissions (i.e., remedying historical injustice), instead upholding the use of race-conscious admissions policies based on student body diversity being a compelling interest for universities to pursue, using narrowly tailored means. For almost five decades, race has been barred from use in a quota system, to create set-asides, to engage in racial balancing or used as the sole reason for an applicant’s acceptance or denial.
Unfortunately, far too many people have the misconception that affirmative action policies benefit “unqualified” applicants of color who “did not get in on their own merit.” This is a gross mischaracterization of the facts in these cases. As Justice Ketanji Brown Jackson pointed out in her dissent, under UNC’s admissions policy, some of the more academically successful applicants of color were still denied admission under these policies. This misconception also ignores that white women have been some of the “greatest beneficiaries” of affirmative action policies, as former federal district Judge Shira Scheindlin discussed in her recent New York Times article.
The court’s decision will make it harder for institutions that are subject to its ruling to achieve racially diverse classrooms, forcing them to rely more heavily on race-neutral categories to achieve greater diversity. This reliance wrongly assumes that other factors, like class or hobby, can sufficiently account for race, which dilutes the purpose of affirmative action policies altogether. It also makes it more challenging for universities to use their admissions processes to combat the experiences of racial isolation, tokenism and harassment on campus that our clients testified about at trial in federal District Court. As research shows, increased racial diversity on campus correlates to a decrease in the likelihood that a hate crime will occur.
It is critical that all aspects of society remain meaningfully open to people from all racial and ethnic backgrounds. This not only allows them to build trust in our institutions but also promotes cross-cultural understanding, which is necessary to thrive in our increasingly diverse society, as Justice Sonia Sotomayor highlighted in her dissent citing the brief written by the Lawyers’ Committee for Civil Rights Under Law.
Concerningly, the court could be understood as suggesting that racial diversity is only relevant insofar as it relates to national security, by providing an explicit carve-out for military institutions in its decision, on the basis that military academies have “potentially distinct interests” other institutions may not have. However, Chief Justice John Roberts failed to mention what those interests are. This understanding disregards the many ways our nation, professions and institutions have embraced racial diversity, not colorblindness, as a core value since the 1960s along with the understanding that representation matters.
While the court’s majority made it more difficult to achieve racial integration in higher education, there remain legitimate pathways universities should pursue to ensure their schools remain meaningfully open to students from all backgrounds. For instance, they may continue considering an applicant’s racialized experiences if it is raised in their application. To that end, universities could request diversity essays (similar to a personal statement), which allow applicants to voluntarily discuss different aspects of their identity and how their lived experiences affect their worldview and potential classroom contributions, without taking away from their written application materials.
Universities also can find new, creative ways to attract, recruit and retain students from racially diverse backgrounds, such as using virtual interviews, regional college fairs with on-sight admissions counselors, or even ZIP code-based mailing.
Likewise, law schools and other doctoral programs might start ramping up their pipeline and mentorship programs with aspiring students from underrepresented communities. This is particularly true of the legal profession, where the court has long recognized since the Sweatt v. Painter case in 1950 the “practical” importance of making law schools accessible to all segments of society.
Universities can continue to offer scholarship opportunities that might increase diversity by conditioning those scholarships on an applicant’s desire to work in underserved communities after graduation. Students also might see an increase in private scholarship opportunities offered by institutional donors, alumni affinity groups and civic organizations to support access to higher education for Black or other communities of color. Similarly, Sotomayor cited the brief filed by the Lawyers’ Committee in her dissent, asserting universities can continue and increase support for affinity groups on campus, as well as cross-cultural programming, to help ensure healthier climates.
Although the Supreme Court narrowed universities’ use of race in admissions, affirmative action policies are not dead: Holistic admissions plans remain lawful, universities can continue considering a student’s racialized experiences among other experiences when reviewing a student’s application, and affirmative action policies in the employment sector remain untouched. As alumni and professionals, we must remind our alma maters and our profession to remain open to future generations of talented, hardworking and resilient students of color. Our nation’s future depends on it.
Taylor Dumpson serves as associate counsel at the Lawyers’ Committee for Civil Rights Under Law. She co-authored the brief for the respondent-students in the UNC affirmative action case.