The Aftermath of the Supreme Court's Affirmative Action Ban
Art by Melody Lin
The long legal debate over affirmative action has finally come to a close. In June 2023, the Supreme Court banned the use of race-conscious admissions programs within universities. While the debate over the legality of affirmative action has come to an end, a Pandora’s box of political uncertainties has been opened for the college-hopeful class of 2028. Without much guidance from the Supreme Court’s decision, the closing of the legal battle now marks the beginning of a political battle over how to implement and navigate a new college admissions policy. Universities are looking for new ways to maintain diversity levels without getting wrapped into a costly lawsuit, and students are left wondering if they should discuss their race within their personal statements.
However, this ruling will drastically change college admissions for some more than others. The most elite institutions – the ones who have the most power to guarantee students a top-earning job after graduation – are forced to resort to less effective means of assuring diversity on campus, disproportionately harming minority students aiming for these top institutions.
Affirmative action is not what we think it is
Affirmative action has greatly evolved since its introduction as a policy to combat racial discrimination during the Reconstruction Era. In the early 1960s, universities began using affirmative action as a means of remediating the effects of racism within the United States through increased access to education. In Regents of the University of California v. Bakke, the Supreme Court ruled that race could be used as “one factor among many”. The scope of affirmative action was further narrowed in a 2003 Supreme Court case, Grutter v. Bollinger, which established that universities could use race to ensure a diverse study body, not to give preferential treatment to a single race or ethnicity. This era of “race-conscious admissions” encouraged universities to consider a student’s race as a means to increase diversity on campus, thereby benefiting the educational experience of all students.
Contrary to popular misconception, universities have never used affirmative action to let an applicant into a university purely on the basis of race. Race has always been considered in conjunction with the rest of a student’s application, serving as a factor that could tip an applicant over into the “yes” pool. Grutter affirmed that affirmative action would be used simply as a means to fulfill a commitment to a diverse student body.
The impact of these affirmative action programs has been momentous, especially for the most prestigious institutions. It has given increased access to historically underrepresented groups within historically exclusionary campuses, such as the Ivy Leagues. Some of the most successful academics within the United States – including Justice Sotomayor, who voted against the ban – credit affirmative action for getting them to the “starting line”, allowing them to enjoy successful careers years later. With these policies now banned, minority students aiming for top institutions worry how this will affect their chances of getting into an elite institution.
California as a blueprint
Despite all the uncertainty surrounding the nationwide ban on affirmative action, several states across the US can provide us with a more concrete look at the understanding of what our world will look like post-affirmative action. California – ironically, viewed as one of the country’s most progressive states – banned affirmative action in public institutions over twenty years ago. In a 54% to 46% vote, California voters approved Proposition 209 in 1996, banning affirmative action for the UC and CSU schools.
California’s ban on affirmative action has created massive consequences for the number of minority students enrolled in public universities, however, these consequences were not proportionate across all public college campuses. This ruling had an outsized effect on UCLA and UC Berkeley, the two most selective public institutions in California. The first incoming class after the ban on affirmative action saw enrollment of Black and Latino students at UCLA and UC Berkeley fall by 40%.
Beyond acceptances, studies reveal another important fact: the ban on affirmative action has acted as a deterrent, discouraging prospective minority students from applying to selective institutions in the first place. Many high-performing minority students knew they would be underrepresented on campus, deterring them from sending in their applications to begin with. It is reasonable to assume that many students do not want to attend a university where they feel underrepresented on campus, leading to feelings of isolation and increased risk of stereotypes, as articulated by the justices in the Grutter decision. This has implications down the road, as students who would have gotten into these schools found themselves at less selective institutions with less long-run labor market prospects, including access to high paying jobs. Zach Bleemer, an economist at Princeton University, suggests that for the next 15 or 20 years after college, students are earning approximately 5% less than they would if they had attended more selective universities through affirmative action.
Despite the initial plummeting of minority students on the campuses of the most prestigious UC schools, the UC schools sought to find other ways to get their diversity numbers up. Through a process of trial and error, the UC schools have implemented many different programs to varying degrees of success. They’ve guaranteed admission to the top-performing graduating high school students to ensure students from schools with different access to resources still have access to a UC education. They’ve implemented a comprehensive review process to look at students’ academic success in the context of the resources available to their high school. In 2020, they got rid of the standardized test requirements, which are seen to be racially biased and favor wealthier students with access to test preparation materials. There is a strong correlation between test scores, family income, and the racial background of the student, persuading the UCs to drop the testing requirement. Additionally, the UCs have spent over half a billion dollars on outreach programs targeted at low-income students, first-generation students, and students from disadvantaged high schools.
Despite employing these strategies to increase diversity on campus, the UC campuses still failto meet their diversity goals. Significantly fewer Black and Latino students attend the UCs than their share of California high school graduates. This was not as salient of an issue before California’s ban on affirmative action.
Specifically, while just over half of high school graduates identified as Latinx, only one-fourth of UC college students identified as Latinx. Similarly, Black students make up 5.5% of high school graduates but makeup only 3.9% of students on UC campuses. These numbers are even lower for UC Berkeley and UCLA. While these statistics show improvement from the initial years after Prop 209 was implemented, according to the UC Regents, they are still far from the UC’s diversity goals. Beyond lack of access to the most prestigious universities, these numbers can also represent a lack of community on campus for minority students. Without a critical mass of students who share a racial background, these students can develop feelings of exclusion and isolation.
In August 2022, the president and chancellors of the University of California schools submitted an amicus brief in favor of affirmative action, supporting Harvard and UNC in their June 2023 case against Students for Fair Admissions. Citing the issues above, the brief emphasized that despite its efforts to recruit minority students through different programs, the ban on affirmative action has ultimately prevented students at UC schools to “fully realize the educational benefits of diversity”.
What does this mean for students today?
As students move into a post-affirmative action world, difficult questions loom large: should students be allowed to indicate their race through means other than the race box? Universities can look at other signifiers of race, such as name, zip code (if a student is from a historically minority neighborhood), extracurricular activities (if a student is part of a cultural club), and most notably, the college essay.
As this round of college applicants send in their applications, colleges still don’t know what legal compliance with the ruling means. The ruling issued by the Supreme Court in SFFA v. Harvard and SFFA v. UNC offers very little guidance for admissions officers to deal with these issues of race. However, 40 pages into the ruling, Chief Justice Roberts offered a short paragraph of guidance for college admissions officials, allowing officials to consider an applicant’s “discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise”. In other words, colleges can look at how a student's heritage or race shaped them to be a stronger applicant today. The individual must be considered not on the basis of their race, but on the basis of their experiences as an individual.
However, this is far from a step-by-step guide for college campuses. This creates a challenging dilemma for universities, who have been forced to walk a fine line between compliance and their university goals. If they produce the same levels of diversity pre-ruling, they risk a lawsuit against them for not complying with affirmative action. If they don’t produce an adequately diverse campus, it hurts the goals of the university and harms the campus environment for students.
Students also face a pressing dilemma: will they be put at a disadvantage if they choose to disclose their race through their personal statements, or through their on-campus affiliations? If they choose to forgo race in their application, they lose sharing an important part of their identity with campuses, a piece of their identity that previously gave them a leg up in college admissions. Certain elite institutions have rephrased some of their application questions, asking students to talk about their identity through “lived experiences” and the “unique contributions” they will bring to the campus, almost a direct quotation found within Justice Roberts’ majority opinion.
While the “lived experience” question attempts to lean into diversity without the explicit mention of race, it is simply not enough for some students. In a world where race shapes so much of who we are – yet simultaneously does not define us – foregoing race on an application can be alienating to some students, who feel as though they cannot share their full identity with universities. Simply pushing past the question of race on applications disregards family history, ethnic background, and identity of millions of students.
The short-term effects of the ban on affirmative action may seem clear: a dip in the number of minority students enrolled in elite universities. However, the larger consequences loom years down the road in the form of loss of employment opportunities for minorities and a loss of valuable diversity for all students on campus. Ultimately, institutions across the nation will have to be creative in modifying their policies to ensure access to opportunity, lest they fail to serve the students who ultimately benefit the most from their college education.