Is There a Path Forward? Affirmative Action in Higher Education After the Supreme Court’s Decision
In response to the Supreme Court’s June 29 decision overturning the use of race-conscious admissions in higher education, the AIR Equity Initiative invited three experts to reflect on the ruling and what it means going forward. AIR’s Rashawn Ray and Terris Ross provide some context for the discussion below. Jump to the essays.
In 1961, an executive order from President John F. Kennedy required government contractors to take “affirmative action” to ensure equal opportunities for all people, regardless of their race, creed, color or national origin. Though affirmative action has its origins in employment, it quickly became a primary mechanism to diversify colleges across the United States.
On June 29, 2023, the Supreme Court ruled that race-conscious college admissions policies are unlawful under the equal protection clause of the 14th Amendment (though made an exception for military academies). As part of its decision, the court called into question the educational benefits of campus diversity, along with race-conscious methods of achieving that diversity.
Despite public opinion on affirmative action, the research evidence is clear. The educational benefits and importance of student diversity are well-documented in academic literature and the matter should be a settled issue. And one central issue is the recognition that all students in the U.S. do not have equitable access to school resources and opportunities to learn and succeed in a global economy. Much of the inequality is rooted in the places where people live and plays out in the racial and class backgrounds of the students. Segregation by race and place has substantial implications for who has access to education beyond high school.
- Regents of the University of California v. Bakke (1978): Ruled universities can consider race as a factor in admissions, but quotas are unconstitutional. In 1996, the state of California passed Proposition 209 prohibiting state universities from using race as a factor in admissions. Eight other states followed to ban affirmative action.
- Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003): Ruled that a points system using race is unconstitutional, but race could be used for admissions in a narrow and tailored way.
- Fisher v. University of Texas (2016): Upheld previous rulings that race can be considered a factor in college admissions and ruled it constitutional for the University of Texas to admit applicants who graduated high school in the top 10% of their class.
- Students For Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) and Students for Fair Admissions, Inc. v. University of North Carolina (2023): The Supreme Court ruled that race-conscious college admissions policies are unlawful under the Equal Protection Clause of the 14th Amendment in the U.S. Constitution.
The strict scrutiny that the U.S. Supreme Court applied to affirmative action policies in higher education seems to obfuscate the role of systemic barriers–such as increasing levels of residential and school segregation and growing income inequality, which disproportionately affect students of color and their families. Schools are actually more segregated in 2023 than they were in 1993 as our neighborhoods are becoming increasingly segregated by race and social class. Addressing these inequalities through fairness in employment practices and college admissions policies ought to be the most compelling interest the government could pursue in the name of equal protection under the 14th amendment. However, this requires a belief that systemic racism exists, persists, and limits access to benefits–such as those a college education confers–for students of color, while systematically advantaging their white peers.
- Generating evidence to help decision-makers develop laws and policies that can remove discrimination. We will prioritize studies that investigate whether race-neutral admissions policies can help college campuses achieve sufficient levels of student diversity.
- Helping colleges and universities develop and implement effective strategies for diversifying their campuses. This includes building tools that use existing data sources, such as the U.S. Department of Education’s Civil Rights Data Collection, to develop proxies for racial inequality for use in admissions reviews. Such data might include place, household income, wealth, and access to advanced coursework, extracurricular activities, and equitable discipline policies, all of which are highly correlated with race and racism in the U.S.
- Serving as a convener of ideas and insights that can inform policy and practice. The AIR Equity Initiative was designed to foster conversations with experts, community members, and other stakeholders whose knowledge and lived experiences can lead to better research, better program implementation, and better outcomes.
In our role as a convener of ideas and insights, we are publishing essays from three leading scholars on affirmative action, higher education policy, and diversity. These experts weigh in on the implications of the Supreme Court decision, how this is the latest salvo in an ongoing effort to undo programs that help level the playing field for those who have been systemically segregated, and how higher education might move forward.
EDITOR’S NOTE: The opinions in these essays are those of the authors and are not necessarily the opinions of the American Institutes for Research (AIR), its staff, or its leadership.
ESSAY 1: “How Did We Get Here? Affirmative Action in Admission to Selective Colleges” by Natasha Warikoo, Ph.D.
Warikoo is the Lenore Stern Professor in the Humanities and Social Sciences in the Department of Sociology at Tufts University. She is a former professor at Harvard University, a Guggenheim fellow, and a high school teacher. Warikoo is the author of several books, including: Race at the Top: Asian Americans and Whites in Pursuit of the American Dream in Suburban Schools; Is Affirmative Action Fair? The Myth of Equity in College Admissions; and The Diversity Bargain: And Other Dilemmas of Race, Admissions, and Meritocracy at Elite Universities.
ESSAY 2: “Banning Race-Conscious Admissions Doesn’t Change How Racism Shapes Educational Opportunities” by W. Carson Byrd, Ph.D.
Byrd is an associate research scientist in the Center for the Study of Higher and Postsecondary Education at the University of Michigan. He is the author of Behind the Diversity Numbers: Achieving Racial Equity on Campus; Poison in the Ivy: Race Relations and the Reproduction of Inequality on Elite College Campuses; and co-editor of Intersectionality and Higher Education: Identity and Inequality on College Campuses. Previously, Byrd was associate professor of sociology at the University of Louisville.
ESSAY 3: “The Practicalities of Federal and State Law in College Admissions” by Matthew Patrick Shaw, J.D., Ed.D.
Shaw is an assistant professor of law and public policy and education at Vanderbilt University. He is the author of articles and chapters that include “The Public Right to Education” and "Bans on Affirmative Action in States with a History of State-Sponsored Discrimination.” Shaw holds degrees from the University of North Carolina, Columbia University, and Harvard University. Previously, he was a fellow at the American Bar Foundation and clerk for then-Chief Judge W. Louis Sands of the U.S. District Court in Georgia before practicing law in Atlanta.
