In two recent cases, Chief Justice John Roberts, joined by all five conservative justices, held that race-based affirmative action violates the equal-protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1965. According to the majority opinion written by Roberts, the use of affirmative action by colleges to enable them to assure diversity in their student bodies violates the guarantee of equal protection of the law and the prohibition against racial discrimination.

Since 1978, the Court has considered a college’s pursuit of the educational benefit of a racially diverse student body to be a compelling interest, which made it legitimate. Roberts’s opinion made clear that this is no longer the case. Jeannie Gerson, writing in The New Yorker (June 29), said that “Although Chief Justice Roberts acknowledged that college’s interests in diversity are commendable, he said that ‘they are not sufficiently coherent,’ arguing that it was unclear how to measure when the goals have been reached and how to know when the use of race should end.”

Roberts labeled a college’s interest in promoting diversity to be “inescapably imponderable”. He concluded that affirmative action programs were unfocused and “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

In his comments after the decision was announced, President Biden emphasized that “For 45 years, the United States Supreme Court has recognized a college’s freedom to decide how to build diverse student bodies and to meet their responsibility of opening doors of opportunity for every single American.” He stated that, “In case after case, including recently, just as a few years ago in 2016, the Court has affirmed and reaffirmed this view: that colleges could use race not as a determinative factor for admission, but as one of the factors among many in deciding who to admit from a qualified — already qualified — pool of applicants.”

Court’s Decision Mainly Affects Top-Tier Institutions

Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina are the two lawsuits that led to the Supreme Court’s decision on race-conscious admissions. Most applicants to these two institutions are rejected. At the University of North Carolina at Chapel Hill, just 20% of applicants were admitted in fall 2021. The odds of admission to Harvard were even smaller, with a rate of only 4%.

According to Audrey Williams June and  Jacquelyn Elias, writing in Chronicle of Higher Education (June 30), “Institutions like Harvard and UNC — selective enough to need to use race as a factor in admissions to diversify their student bodies — have garnered outsize attention in the long-running debate over affirmative action’s role in higher education because the route to high level positions in government and business often includes an undergraduate education at an elite institution”. For example,  five of the six living ex-presidents of the United States earned an undergraduate degree at a college that admits fewer than 15% of applicants.

Most students never participate in an admissions process that considers race the way that UNC and Harvard do. In the United States, there are only 68 colleges, or 2% of the total, that admit less than 25% of applicants. They are far outnumbered by the more than 3,000 colleges that have higher acceptance rates. Over 2,900 colleges admitting over 50% of applicants. These institutions enrolled over 14 million undergraduates in the fall of 2021.

Colleges admitting at least 25% of applicants enroll larger percentages of minority students than do the most highly selective institutions. In fact, in comparing the Over-25% schools to the Under-25% schools, there’s a 6% advantage in the percentage of Black students and a 7% advantage in the percentage of Hispanic students.

A factor that further reduces the number of colleges affected by the Court’s ruling is that nine states have already banned race-conscious admissions at public institutions. These bans have resulted in fewer Black and Hispanic students enrolled at highly selective public colleges like the University of California at Berkeley and the University of Michigan at Ann Arbor. For the most part, Asian-American students have filled the empty freshman seats.

The fate of race-conscious admissions is deeply significant in the context of American history and culture. The proportion of minority students at top-tier institutions remains important. However, diversified student populations have long existed in higher education outside of the small number of top-tier institutions.

A Loophole in the Decision

Since colleges cannot consider an applicant’s race, the next logical question is “What can they consider?” In an excerpt of his opinion  that has drawn much scrutiny, Roberts said, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Roberts was amplifying his statement that “The student must be treated based on his or her experiences as an individual rather than on the basis of race.”

In his comments following the decision, President Biden declared, “We cannot let this decision be the last word. I want to emphasize: We cannot let this decision be the last word.” He stressed that colleges and universities “should not abandon their commitment to ensure student bodies of diverse backgrounds and experience that reflect all of America.” Biden then cited Roberts’s clarification that nothing in the decision should prevent colleges from considering an applicant’s discussion of how race has affected his or her life.

Biden stated he was “…directing the Department of Education to analyze what practices help build …more inclusive and diverse student bodies and what practices hold that back, practices like legacy admissions and other systems that expand privilege instead of opportunity.” Civil rights groups promptly filed suit to eliminate legacy admissions.

Top-Tier colleges may continue to pursue racial diversity without overtly weighing race as a factor. Methods used can include the following:

  1. Taking steps to get applications from high schools with high minority populations that they have neglected in the past.
  1. Colleges can scrutinize recommendations, interviews, essays, and personal statements to glean information about racial backgrounds through life experiences.
  1. Over 80% of colleges have made SAT/ACT scores optional. Colleges have also begun to adopt test-blind policies under which test scores are not even accepted from applicants. This prevents (mostly White and high income) applicants from using high test scores as an advantage in admissions.
  1. Top-tier colleges are under pressure to eliminate legacy preferences for (mostly White and high income) children of alumni. Colleges may also choose to eliminate some or all slots set aside for recruited athletes, enroll more community college transfers, expand need-based financial aid, and curtail early admissions programs. These steps don’t guarantee racial diversity but taken together, they foster it.

Colleges that adopt such policies will risk attracting lawsuits. Conservative activists have promised to challenge in court any admissions practices that they perceive as subterfuges for race-based admissions. The potential for success of such lawsuits remains to be seen.

Admission Strategies of Minority Students

Minority high school students navigating the labyrinthine admissions process at top-tier colleges are free to write about how their race and experiences of racism have made them better people and better candidates to become part of a college’s student body.  As a result, the end of affirmative action will transform how many applicants will represent themselves to top-tier colleges that are free to consider an applicant’s narrative concerning how race has affected their lives. Colleges will be able to consider an applicant’s race when it’s disclosed in an essay or personal statement.