On Monday, the Supreme Court will hear oral arguments in two cases: Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard. The court last discussed the topic in Fisher v. University of Texas, which the court heard in 2016. Since then, Trump appointees have shifted the court in a much more conservative direction, and affirmative action might not survive this constitutional challenge. If it does not, universities will no longer be able to take student racial identity into consideration in admissions.
However, even if the court bans college affirmative action, my research finds that the goals behind these programs may survive. While in the past, state restrictions on affirmative action have decreased the numbers of underrepresented minorities on elite campuses, universities maintained their commitments to racial diversity through other admissions methods.
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Some states already ban affirmative action
Over the past two decades, conservative reformers have waged war on affirmative action through state ballot initiatives and won bans on race-conscious practices. The effect? Elite public universities, such as the Universities of California, Michigan, and Washington, cannot consider race in admissions. The U.S. Court of Appeals for the 5th Circuit in Hopwood v. Texas stopped universities in Texas, Louisiana and Mississippi from practicing affirmative action from 1996 to 2003.
Universities followed these bans to the letter and interpreted them as banning a particular method of recruiting a racially diverse class, but not the commitment to diversity itself. They responded by removing the explicit consideration of race from their policies when admitting students and awarding scholarships. These policy changes did decrease the numbers of students from underrepresented races and ethnicities in their incoming classes.
But legal change is not the same as practical change. In my forthcoming book, I find universities followed the letter of the law but aggressively pushed to thwart its spirit. For instance, the University of Texas relied on an unlikely source — segregation — to craft a policy solution after the 5th Circuit ruled that race-conscious admissions programs were unconstitutional.
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Because Texas had such a high proportion of single-race high schools, UT faculty and state legislators realized that automatically admitting the top 10 percent of graduates from every public high school in the state would result in consistent racial diversity at Texas universities — without ever mentioning race. Shepherded by influential Democrats in the statehouse, the bill passed the Texas legislature and was signed into law by then-Gov. George W. Bush in 1997. The Top Ten law increased the geographic diversity of students entering UT. But the law was not effective at maintaining or increasing the numbers of underrepresented racial minority students.
For its part, the University of California at Berkeley was already receiving more than 20,000 applications per year when the UC Board of Regents banned affirmative action in 1995. In 1996, the state’s voters passed a referendum measure that put that ban into the state constitution.
At the time, admissions officers relied on a student’s grade-point average and standardized test scores to make their admissions decisions; officers took note of whether a student identified as an underrepresented racial minority, which would help students receive a positive admissions decision. Removing race consciousness from this process would have resulted in a mostly White and Asian American admitted class. To avoid this, faculty and administrators revamped admissions to consider other variables that would produce a class that was broadly diverse, including students from different socioeconomic, family education and racial backgrounds.
They asked admissions officers to evaluate factors such as whether students had taken leadership roles in their communities, had significant home responsibilities, had overcome challenging family circumstances or whether their high school’s resources may have affected their success.
Of course, assessing how these factors might have influenced student achievement was a subjective and highly personalized process compared with the old system, and admissions evaluators could disagree on whether a student was outstanding given the context. To account for that, Berkeley made sure each application had at least two reviewers and held weekly “norming sessions” to make sure readers were on the same page. The readers evaluated these factors on all applications, which meant a tremendous increase in workload for the admissions staff. Ultimately, the flagship campuses of the University of California at Los Angeles and Berkeley experienced tremendous declines in underrepresented racial minority enrollment.
Similarly, in Michigan in 2006, voters amended the state constitution to ban affirmative action. At the University of Michigan, administrators heard that software from the College Board called Descriptor Plus might offer a way to prioritize diversity while complying with the ban. The software was marketed as a way to target high school students who had the resources to afford higher tuition but would not otherwise have applied. It grouped high schools and neighborhoods together in clusters based on similar data points, such as percentage of adults in a community with professional jobs, percentage of students who were the first in their families in college, and percentage of families below the poverty level. The same cluster number could be shared across geography, so a rural Upper Peninsula high school (likely nearly all White) might be in the same cluster as an urban Detroit high school (likely nearly all Black). Admissions personnel integrated these clusters into their admissions process, giving preference to those underrepresented at the school. It has taken more than a decade since the ban for Hispanic undergraduate enrollment to rebound; Black and Native American student enrollment has plummeted.
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The Supreme Court will likely issue its opinions on Monday’s cases sometime in 2023. As my research finds, affirmative action bans succeeded in removing race from university application review in states where they were implemented, and the overall numbers of enrolled minority students declined as a result. Nevertheless, the bans failed to end universities’ priorities for racial diversity.
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Lauren S. Foley (@LSFoley) is an assistant professor of political science at Western Michigan University and author of “On the Basis of Race: Legal Resistance and Compliance in United States History and Politics” (NYU Press, forthcoming 2023).