Upcoming U.S. Supreme Court cases could curb colleges’ use of affirmative action

WASHINGTON — A U.S. Supreme Court dominated by conservative justices could fundamentally reshape the college admissions process later this year when it takes up two landmark cases challenging affirmative action in higher education.

The court recently agreed to hear two cases that challenge race-conscious admissions programs at Harvard University and the University of North Carolina, the nation’s oldest private and public universities. The decision to take up these cases indicates the conservative justices who now make up a 6-3 majority of the bench could be poised to make significant changes to the legal standard on affirmative action, according to legal experts.  

However, one voice that would likely not be heard on the decision is that of Supreme Court nominee Ketanji Brown Jackson, a Harvard graduate. Jackson has been nominated by President Joe Biden to replace Justice Stephen Breyer, a member of the liberal faction on the court who announced earlier this year he would step down at the end of the current term.

Jackson said March 23 at her Senate confirmation hearings that she would recuse herself if confirmed as a justice before the court hears the marquee cases this fall.

Jackson, who would be the first Black woman on the Supreme Court if confirmed, is a graduate of Harvard College and Harvard Law School and will complete a six-year term on the Harvard Board of Overseers this spring.

When questioned about the potential conflict of interest, Jackson was unequivocal.

“If you’re confirmed, do you intend to recuse from this lawsuit?” Sen. Ted Cruz, R-Texas, said of the affirmative action case. 

“That is my plan, senator,” Jackson said.

Discrimination argued

The cases against Harvard and North Carolina argue that Asian American students have suffered discrimination in the admissions process at both schools. Those familiar with the cases say they could open the door for a significant ruling.

“I think this could pose a very real threat to the ability of schools to pursue diversity as well as equity in their admissions process, as well as in the way they shape and think about the academic environment that is created on higher education campuses,”  said Sarah Hinger, a staff attorney in the racial justice program at the American Civil Liberties Union. 

The Supreme Court last ruled on an affirmative action case in 2016, recent history in the timeline of case law. Taking up a related case so soon indicates the court may be intending to revisit the precedent on the constitutionality of race in college admissions.

The potential shakeup comes as many colleges are shifting away from a reliance on standardized test scores, a trend that grew out of the educational disruption of the COVID-19 pandemic. Scores traditionally have been relied upon by many colleges and universities in their admissions processes, despite arguments by some that they are not as good a predictor of a student’s success as a high school GPA.

Harvard University recently made standardized test scores optional for the next four years. And leaders in Iowa, Colorado, Montana, Illinois and Washington have made tests optional for admission to many of their public colleges and universities.

Meanwhile, the plaintiffs at the Supreme Court want universities to have a more objective admissions process. 

The case against Harvard argues it discriminates against Asian American students by using subjective standards to weigh admissions. According to the group, Asian American applicants are significantly less likely to be admitted to Harvard than similarly qualified white, Black or Hispanic applicants.

In the North Carolina case, the plaintiffs argue the university’s consideration of race in the application process violates the Constitution and discriminates against white and Asian American applicants by giving preference to Black, Native American or Hispanic applicants. 

Both cases have been pursued by a nonprofit, Students for Fair Admissions. The president of the group is Edward Blum, a retired financier who has launched other lawsuits against the use of race in the college admissions process. 

Blum says UNC and Harvard have “racially gerrymandered” their freshman classes and should use an admissions process that is blind to race. 

“We are grateful the Supreme Court accepted these important cases for review. It is our hope that the justices will end the use of race as an admissions factor at Harvard, UNC and all colleges and universities,” Blum said in a statement.

Both universities have defended their processes as consistent with the law and denied discrimination against other applicants. 

“The Supreme Court decision to review the unanimous decisions of the lower federal courts puts at risk 40 years of legal precedent granting colleges and universities the freedom and flexibility to create diverse campus communities,” Harvard President Lawrence Bacow said in a statement. 

“Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all.”

The ‘plus factor’

Since 1978, the Supreme Court has maintained that colleges and universities may consider race or ethnicity as a “plus factor” in admissions to try to create more diversity on campuses. Schools cannot have racial quotas or use race as a sole determining factor.

But the victories for affirmative action were narrow in the last three different Supreme Court decisions, where the justices split 5-4, 5-4 and 4-3 to uphold its constitutionality. 

Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito were the dissenters in the 2016 decision. Now they have three more conservatives on the bench with them: Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch.

“Affirmative action has survived by only one vote, literally, for the past 45 years,” said Kevin Brown, law professor at Indiana University’s Maurer School of Law.  “What makes it more problematic this time is the lineup of the court is more conservative, so we might end up with a different judgment.”

If the Supreme Court prohibits the consideration of race in applications, Brown and other scholars predict lower enrollments from historically underrepresented minorities, especially Black and Latino students. 

The most profound effects would play out in selective universities and graduate programs, where more of the “plus factor” comes into play to narrow down the abundance of highly qualified candidates that exceed available spots.  

Brown said it could have negative effects not only for those that do not get the opportunity to go to those schools, but also for the students in less diverse classrooms. 

For example, he said many of his students come to law school with few experiences around people of color. And the conversations in his race and law course are much richer when Black and Latino students are in the room.

“We are running the tremendous risk of putting people in positions of power who know very little about half the population,” Brown said. 

Increasing diversity

Affirmative action policies were designed to increase diversity on campus and respond to a history of inequality and segregation in the United States, where students of color were kept out of many schools for years. 

President Lyndon B. Johnson described the policy in a commencement address at Howard University  on June 4, 1965. “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.”

But the policies have been controversial.  A 2019 Pew Research Center survey  found that nearly three-fourths of respondents said colleges and universities should not consider race or ethnicity when making decisions about student enrollment. 

Some states have banned affirmative action over the past 26 years. Arizona, California, Florida, Georgia, Michigan, Nebraska, New Hampshire, Oklahoma and Washington all have bans, mostly through ballot initiatives or legislative referenda. The Supreme Court reversed a Texas ban in 2003.

Those states may offer some indication of what could happen if the Supreme Court overturns affirmative action. In states with a ban, researchers have found that enrollment of under-represented minorities, especially Black and Latino students, decreased at selective institutions, graduate and professional schools.

 A 2020 study from researchers at the University of Washington and Brookings Institution found “persistent declines in the share of underrepresented minorities” at flagship universities in the states with an affirmative action ban. 

This is despite efforts in some colleges to try other tactics to help make their colleges more diverse, like admitting the top 10 percent of each high school class or accounting for socio-economic status.

 “The danger is a Supreme Court decision that outlaws affirmative action or racial awareness as a college builds a class of students at a school, will result in lower enrollment, especially of Black students, at our most elite colleges,” said Robert Shireman, who studies higher education as a fellow at The Century Foundation.

But many colleges and universities have already seen waning enrollment of Black students in recent years. 

An analysis of federal data from before the pandemic found overall declines in college enrollment nationwide and especially among Black students, whose enrollment declines exceeded changes in population growth, according to a report from the Center for American Progress. 

Jared Bass, senior director for higher education at the Center for American Progress, said those declines have continued through the pandemic.

“We are seeing a decline among Black students in higher education, and this is also feeding into the concern about representation in highly selective institutions,” said  Bass. “It is definitely a concern when you think about the college culture and the students impacted.”

Bass and other experts are worried that if the court bans affirmative action, those gaps could be even bigger , especially at highly selective schools. When college admissions officers consider a student’s race, it is part of a holistic assessment of the pool of qualified students to try to bring in a balanced and diverse set of students.

In an amicus brief to the Supreme Court in 2015, the state of California said that as a result of its affirmative action ban, the University of California has struggled to attain a level of racial diversity on its campuses that reflects the state. Vice President Kamala Harris, then the attorney general for the state, led the brief.