The following editorial appeared in the Washington Post:
The Supreme Court on Thursday all but banned affirmative action at universities that accept federal funding, abandoning a half-century experiment in promoting campus diversity. The decision gutted 45 years of precedent without acknowledging that it was doing so.
The ruling will not – and should not – end universities’ efforts to build student bodies that reflect the country, nor will it conclude the legal wrangling over such efforts. Rather, it is an invitation for potentially endless further litigation about whether admissions offices are following the rules the court has set down. Facing this prospect, universities will seek alternative admissions strategies. They have some options.
Thursday’s decision leaves little hope that any race-conscious admissions policy could survive court scrutiny. Invoking Brown v. Board of Education, Chief Justice John G. Roberts Jr. declared that “eliminating racial discrimination means eliminating all of it.” He argued that the majority was respecting, rather than overturning, precedent, stressing that the court had previously put limits on race-conscious admissions. But at the same time, he attacked the court’s previous reasoning.
The chief justice criticized the purpose of race-conscious admissions policies that the court had blessed in prior cases: exposing students of varied backgrounds and experiences to one another. He argued that the law requires that affirmative action programs do no harm to some applicants to benefit others – and that all race-conscious admissions policies do so: “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” He also assailed the university admissions policies under scrutiny in the case, at Harvard and the University of North Carolina, as lacking a sure end date. Previous rulings maintained that race-conscious admissions policies should not be permanent because over time campuses would naturally become more diverse. But until now, the justices had not determined that the moment had arrived.
Confusion about where the rules now stand will make it hard for universities to rework their admissions practices. Many universities will now replace race-conscious policies with diversity-promoting alternatives that might more easily survive legal attack, and they should.
One potential response is eliminating “legacy” admissions policies that benefit the children of alumni. Universities could also end “merit scholarships” – cash they offer to students they want to recruit, even if those students do not need the aid. Another approach would be to step up outreach to well-qualified minority applicants. But institutions that have tried such methods, such as the University of Michigan, which state voters restricted from engaging in affirmative action in 2006, say they do not work.
Some public universities have tried giving admissions preferences to all in-state applicants who graduate at or near the top of their high school classes. After California voters banned race-conscious admissions at public universities in their state, the University of California system used a version of this policy. Yale economist Zachary Bleemer found that the change boosted underrepresented minority enrollment only 4%, compared with 20% under previous affirmative action policies.
The court did not rule out considering students’ backgrounds and circumstances in holistic reviews of their profiles. Admissions officers can still give credit to applicants who have overcome challenges relating to their race or who would bring unique experiences to campus. Admissions essays, recommendations and other application material can paint a compelling portrait of an individual applicant without assigning specific values to race. Mr. Bleemer found that holistic review policies increased underrepresented minority enrollment by about 7%.
The most promising approach is giving a boost to applicants with low or no family wealth, an approach that Melvin L. Oliver, the former president of Pitzer College, favors. This would enhance socioeconomic diversity on campus, a good in its own right. The racial wealth gap is even larger than the racial income gap, so using wealth as an admissions factor would tend to help Black and Latino applicants – and to reward students who achieved despite difficult circumstances. This is what happened after UCLA’s Law School instituted such a system.
Writing in 1978, when the court first upheld race-conscious university admissions, Justice Lewis F. Powell noted that “the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.” Campus diversity exists for the benefit of all students, not just those from underrepresented groups. That principle was the right one then, and it still is.