Thirteen years later, the first affirmative action case was heard by the United States Supreme Court.  In Regents of the University of California v. Bakke (1978), the Court ruled that, although racial quotas supported by government entities violate the Civil Rights Act of 1964, the use of race was acceptable as one of many admission criteria.

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Twenty-five years later, in the case of Grutter v. Bollinger (2003), the U.S. Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School.  At the time, the school used race as a factor in the admissions process because they believed race served as a “compelling interest in achieving diversity among its student body” (the petitioner was a White student who was denied admission to the school).  

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The Highest Court decided that “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm non-minority applicants.”  In this case, the Court found that, because the school looked at many other factors regarding each applicant, their admissions process did not violate the Court’s decision in Regents of the University of California v. Bakke. 

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​In Gratz v. Bollinger, which was decided the same day and involved the same university, the Court ruled that the point system used by the university to determine admissions did not meet the standards of strict scrutiny (in this case, minority students automatically received 20 points in a 100-point system).

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Although the Supreme Court validated affirmative action in Grutter v. Bollinger, in her written opinion for the Court, Justice Sandra Day O’Connor also expressed that “race-conscious admissions policies must be limited in time.” Writing for the Court, Justice O’Connor pointed out that twenty-five years had passed since Regents of the University of California v. Bakke and that “we expect that twenty-five years from now, the use of racial preferences will no longer be necessary” — effectively setting a timeframe for the policy’s end (which is the year 2028). Throughout the years, many Supreme Court Justices have acknowledged this sunset provision as valid.

 

After Grutter v. Bollinger, the Supreme Court started the shift:

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In 2007, the Court ruled on two cases — Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1.  The Court decided that public school systems can’t seek to maintain integration through measures that consider a student’s race. This is the case where Chief Justice John Roberts famously said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

 

Six years later, in the case of Fisher v. University of Texas, the Court found that the Equal Protection Clause of the Fourteenth Amendment does allow for the consideration of race in undergraduate admissions decisions, but that admission policies must be “precisely tailored to serve a compelling governmental interest.”  If a school fails to meet this standard, race may not be used as a factor for admission. The Court also held that it was the responsibility of the lower court to confirm that the University’s admission policy met this standard, but that the lower court in question failed to conduct an appropriately strict and thorough examination of the policy.

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In January 2022, the U.S. Supreme Court agreed to hear the case Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, along with one involving the University of North Carolina (Students for Fair Admissions, Inc. v. University of North Carolina). In late October 2022, the Court began to hear arguments on these cases.

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In the Harvard case, a group of Asian American students claimed that, to make room for less qualified students of other races, Harvard discriminated against them by placing an admissions cap on the number of qualified Asian Americans granted admission to the school (in other words, the students alleged that Harvard favored Black and Hispanic applicants at the expense of Asian Americans, who, themselves, are also a minority group).  

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The internal data Harvard was forced to turn over because of the lawsuit seems to confirm this accusation. While Asian Americans rank higher than White applicants in Harvard’s admission model – in both academics and the quality of their extracurricular activities — the admission rates for these students are much lower. Think of it this way: If academics were the only factor in admissions, Asian Americans would constitute 43 percent of any given Harvard entering class. However, when other factors like personal qualities and demographics were included in the decision-making process, only 19 percent were admitted.

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The Economist reported it this way: “Peter Arcidiacono, an economist at Duke University employed by the plaintiffs, built a statistical model of the effect of race on admissions. He estimates that a male, non-poor Asian-American applicant with the qualifications to have a 25 percent chance of admission to Harvard would have a 36 percent chance if he were White. If he were Hispanic, that would be 77 percent; if Black, it would rise to 95 percent. Damningly for Harvard, an internal report by their own research arm, obtained during discovery, reached the same conclusions.”

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To make the situation more complicated, Harvard’s propensity to admit “legacies” (i.e., relatives of former students) also skews their system: “Roughly 34 percent of legacy applicants are admitted – more than five times the rate of non-legacy applicants. This is tantamount to affirmative action for well-off White students. According to a survey of freshmen conducted by the Harvard Crimson, the college newspaper, 88 percent of legacy students come from families making more than $125,000 a year.”

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On June 29, 2023, the U.S. Supreme Court — in a 6-3 decision — found it unconstitutional to consider race in university admissions. 

< Note: In the majority opinion, the Court carved out military service academies due to the “potentially distinct interests that military academies may present.” In February 2024, the Court refused to halt the U.S. Military Academy at West Point’s race-conscious admissions policies. The U.S. Naval Academy, the U.S. Air Force Academy and the U.S. Coast Guard Academy also consider race in the admissions process. >

 

Understandably, the decision sent shockwaves through communities of color, who (again, understandably) felt the primary tool for ensuring diversity and racial justice had been suddenly taken away from them.

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Many people remain adamant that, without a mechanism for allowing racial preferences, there is no guarantee that minority applicants will be appropriately represented. Allow us to offer a different take.

 

In the Supreme Court decision, Chief Justice John Roberts made clear that admission offices could still consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The only change, Roberts said, was that “the student must be treated based on his or her experiences as an individual — not on the basis of race.”

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As we have made crystal clear, in no way do we believe past wrongs for Black Americans have come even close to being remedied. In fact, significant, persistent educational achievement gaps prove beyond a shadow of a doubt they have most certainly not been.

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That said, we have long believed that it is critical all our social policies appropriately evolve as we continue our arc toward justice.  If they don’t evolve, we run the risk of them becoming counter-productive for the very communities they were designed to help in the first place.

To that end, broadening our focus from race to include other race-neutral factors to promote diversity in the admissions process can be a positive move for everyone.

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One idea is to assess a student’s socioeconomic circumstance more thoroughly …and remember, this still disproportionately benefits Black Americans because they unfortunately are still the ones who, in the words of Dr. Martin Luther King Jr., “form the vast majority of America’s disadvantaged.”

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In his testimony as an expert witness in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Richard Kahlenberg – a senior fellow at the Progressive Policy Institute, a nonresident scholar at Georgetown University’s McCourt School of Public Policy, and a professorial lecturer at George Washington University’s Trachtenberg School of Public Policy and Public Administration — said that “being economically disadvantaged in America poses seven times as large an obstacle to high student achievement as does race.”

This is an incredibly important insight, especially given the fact that 71 percent of the Black and Latino students who attend Harvard are from wealthy backgrounds.

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One of the main reasons we need to make this shift are those dang unintended consequences we’re always talking about. As we well know, good intentions can have unintended consequences that can quickly become destructive. For example, as these latest court cases revealed, a major unintended consequence of the affirmative action process was that other minority college applicants were being discriminated against, Asian Americans in particular.

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Moving from a focus on race to socioeconomic circumstances is in line with Dr. King’s vision for our country. He was a fierce advocate of helping the disadvantaged of all races: “It is a simple matter of justice that America, in dealing creatively with the task of raising the Negro from backwardness, should also be rescuing a large stratum of the forgotten White poor.”

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Dr. King was also very aware of the resentments and potential backlash that could arise among the White working class if they felt ignored and forgotten: “It is my opinion that many White workers whose economic condition is not too far removed from the economic condition of his Black brother, will find it difficult to accept a ‘Negro Bill of Rights,’ which seeks to give special consideration to the Negro in the context of unemployment, joblessness, etc. and does not take into sufficient account of the White working classes’ plight.”

His words, as usual, were prophetic. Today, over half of White Americans say they believe “discrimination against White people exists in the U.S.” < It’s important to note here that, in the same poll, 84 percent of White Americans also reported to believe “discrimination exists against racial and ethnic minorities in America today.” However, another interesting point is that, even though over half of White Americans say discrimination against White Americans exists, very few report having experienced it firsthand. >

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Making this shift can absolutely be done — and already has been. The University of California Berkeley and the University of California, Los Angeles (UCLA) both replaced their race-focused admissions process with one that focuses on students who are economically disadvantaged. Among many other things, Berkeley’s new system eliminated legacy preferences and increased transfers from community colleges. As a result, in 2020 Berkeley had the most ethnically diverse freshman class in over thirty years. Thirty-one percent of the students came from underrepresented minorities, which was a sizable increase from twenty-two percent the year before.

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There were more first-generation college students than ever before (i.e., students from families in which neither parent has a four-year college degree), and more Pell Grant recipients than there had been in the past (these grants are generally given to those in lower-income households). In 2020, Berkeley gave the largest number of scholarships awarded through its African American Initiative (forty-four of these scholarships were given, compared to twelve the year before and twenty-eight the first year), and there was more ethnic diversity among students who received the Regents’ and Chancellor’s Scholarship, Berkeley’s most prestigious scholarship.

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…and UCLA and Berkeley are not alone. Schools like the University of Washington and the University of Texas at Austin have also made significant headway in navigating more fairness and diversity in their admission process.

 

On a final note, machine-learning algorithms — which can generally make better decisions than humans when potential bias is an issue — can also be a big help in this endeavor. When reviewing bail decisions by judges, for example, researchers from Cornell University found that using machine-learning algorithms can “reduce crime by up to twenty-five percent with no change in jailing rates, or jail populations can be reduced by forty-two percent with no increase in crime rates.”  No reason that something similar can’t work for college admissions!

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We need to remember that change is never easy, and this will be no exception. In 1996, a state law was passed that prohibited the University of California from using affirmative action in admissions. Michael V. Drake, the current president of UC, advises: “Expect a shock. We had to adapt. We’re still chasing, but we’ve made progress.”