The Supreme Court is set to rule on the Harvard and University of North Carolina cases involving affirmative action in higher education admissions in the upcoming months. Most legal and higher education experts expect the court to effectively end the use of racial considerations in higher education admissions.
For those of us whose research focuses on racial equity in higher education, this decision has felt inevitable as we’ve watch court cases and state bans whittle down the ability of higher education institutions to consider race in holistic admissions processes. Many institutions have discontinued any consideration of race well in advance of the upcoming decision. But, it’s worth considering the trajectory of affirmative action and what it means more broadly.
As many scholars have discussed, affirmative action originally served as a stop-gap measure after a long history in higher education of segregation and limited access to people of color. Instead of remedying the systems that denied access as well as dismantling racism within the institutions themselves, affirmative action allowed for the reserving of seats for students from certain groups. Although we often think of affirmative action as a policy for the benefit of people of color, white women have arguably benefited the most from affirmative action.
Understanding affirmative action
Below are some key concepts that are worth examining to better understand affirmative action and how it has changed over the years through key Supreme Court rulings.
As mentioned, originally affirmative action allowed for the setting aside of seats for certain underrepresented groups in higher education. Yet that shifted with the Supreme Court ruling in Regents of the University of California v. Bakke (1978), which held that institutions could no longer hold a certain number of seats or have a quota for how many people of color they wanted to admit. However, in that same ruling, Justice Powell, who cast the deciding vote, argued for consideration of race as one of many factors in admissions.
The Diversity Rationale
Powell also argued in the 1978 case that diversity in classrooms was important for student learning in what became known as the Diversity Rationale. He held that student diversity provided an educational benefit.
Although the Diversity Rationale was introduced in the Bakke case, in the early 2000s the Supreme Court decided two cases against the University of Michigan. In Grutter v. Bollinger (2003), against Michigan’s law school, the university argued that it was important for them to consider race in admissions so they could enroll a “critical mass” of students of color. They argued this was important so that students of color were not subjected to onlyness and tokenization. They argued it was important to have diversity within diversity – enough students of color that there were a variety of differences within a particular underrepresented group – to prevent the otherwise predominantly white law school students from stereotyping the few students of color. The Court ruled in favor of Michigan’s law school in this case.
Notably, by the time the Fisher v. University of Texas (2013, 2016) cases reached the Supreme Court, the argument for a critical mass had abandoned the prevention of tokenization justification that had centered the experiences of students of color. Instead, it relied solely on the importance of a critical mass for the educational benefit of “all” students. This shifted the benefits of critical mass to the student body as a whole, which remained predominantly white. The University of Texas won in both these cases, but again the conversation shifted a bit more away from the needs of communities of color.
When the Michigan Law School case was decided in the 2000s, Justice O’Connor had issued a 25 year timeline for when she and the court expected that race would no longer need to be considered in college admissions. We reach that point in 2028, but most predict the time will be up for affirmative action this year when the Court releases its decision in regard to Harvard and the University of North Carolina.
I have not found anyone who is surprised by what feels like the inevitable end to affirmative action, but I do see confusion around what this means and how to feel about it. The American Association of Medical Colleges advocated for the importance of diversifying professionals in healthcare, including through admissions, likely to no avail in this latest case for affirmative action.
I think this moment should push us to honestly reflect on what we’ve done in higher education. Have we confronted the systemic racism in our institutions or removed the barriers to access that affirmative action has served as a Band-Aid® for? Sure, we’ve done and are doing some work, but I think the end of affirmative action will lay bare the work that we have not done. My hope is that it will push us to get to work.
- Nishi, N.W. (2022) Imperialistic reclamation of higher education diversity initiatives through semantic co-option and concession, Race Ethnicity and Education, 25:2, 249-267.
- Warikoo, N. K. 2016. The Diversity Bargain: And Other Dilemmas of Race, Admissions, and Meritocracy at Elite Universities. Chicago: University of Chicago Press.