The future of affirmative action lies in the hands of the U.S. Supreme Court

The U.S. Supreme Court will soon decide on two affirmative action cases that could potentially alter the landscape of higher education. The plaintiff in both, Students for Fair Admissions, is challenging race-conscious admissions at Harvard University and the University of North Carolina.

When did it start?

In the United States, affirmative action was created by executive order and signed by President John F. Kennedy in 1961. It required that government employers not discriminate in hiring based on race, creed, color, or national origin. President Lyndon Johnson extended affirmative action to include women to the list of protected categories in 1967.

What’s at stake? 

The ability for colleges and universities to be equitable in creating their classes is at stake, as is maintaining the momentum for gaining greater access to higher education for marginalized students. If the court overturns affirmative action, students may not see a change in their application process, but colleges may have to change the way they diversify their applicant pools and the way they reach out to and recruit students.

For instance, many colleges attend college fairs specifically for students of color and visit high schools and cities with high concentrations of people of color to make the college admission process more accessible. While colleges may not be able to take race into consideration, they will continue to use holistic admission criteria. 

According to a brief Harvard filed before the Supreme Court, more than 40 percent of all universities and 60 percent of selective universities consider race in some form during their admissions processes. A ruling for the Students for Fair Admissions would have an immediate impact on students applying to colleges and universities. If race is a significant part of a student’s identity and lived experience, then they will not be able to write about it in their college essay.

Both Michigan and California have enacted laws that state schools cannot use race-conscious admissions. At first, there was a large drop in enrollment of students of color, and it took several years before the institutions were able to recoup some of those numbers due in part to changing the way they recruit prospective students. However, officials at Michigan’s schools say despite “extraordinary” recruiting efforts, enrollment among Black and Native American students has fallen by 44 percent and 90 percent, respectively, since 2006, when consideration of race was banned. UC still struggles to enroll a student body that is “sufficiently racially diverse” to obtain the educational benefits of diversity.

Historical precedent

Regents of University of California v. Bakke, 1978 
When University of California Medical School applicant Allan Bakke was rejected, he took his case all the way to the U.S. Supreme Court. Bakke’s lawyers claimed that despite being a fully qualified candidate, he was denied admission for the school to meet its “quota” of underrepresented students, which was a violation of Title VI of the 1964 Civil Rights Act and the 14th Amendment. Because the quota system specifically privileged students of color over white students, the court determined it was the color of Bakke’s skin that prevented his admission and consequently barred racial quota programs.

Grutter v. Bollinger, 2003 
When University of Michigan Law School denied admission to Barbara Grutter, a Michigan resident with a 3.8 GPA and 161 LSAT score, she filed suit against then-President of UM Lee Bollinger, alleging the school gave Black, Indigenous and People of Color (BIPOC) groups a significantly greater chance of admission. The school argued there was a compelling state interest to ensure a “critical mass” of students from ethnically different groups to obtain educational benefits that flow from a diverse student body. This landmark case held that a student admissions process that favors underrepresented groups does not violate the 14th Amendment’s Equal Protection Clause if it considers other factors evaluated on an individual basis for every applicant.

Possible effect on Colorado College

Based on what we know happened in California and Michigan, we can expect to see an initial decline in students from historically underrepresented backgrounds enrolling at CC. Until the Supreme Court ruling is issued, we won’t know to what extent we will be limited in our ability to recruit and enroll students with a focus on compositional diversity and which offices and programs across campus may be impacted.

While we await a final decision, we are exploring alternative means of building inclusion and access into our candidate pool without the ability to explicitly consider race. Once the decision is clear, we will come back to our CC community with our strategies.

Community Conversation

CC staff and faculty held a panel discussion on Monday, May 8, 2023, weighing in on the impending SCOTUS decision on affirmative action. Listen in more detail as moderator Doug Edlin, political science professor, poses questions to panelists Rosalie Rodriguez, senior associate dean for student equity and inclusion, Karen Kristof, assistant vice president and dean of admission, and Christina Leza, associate professor of anthropology.