PHILADELPHIA (KYW Newsradio) — The U.S. Supreme Court on Thursday ruled that race-conscious admissions programs at Harvard University and the University of North Carolina violate the U.S. Constitution’s equal protection clause, setting precedent for affirmative action in other universities and colleges.
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Law professors have been expecting the landmark decision to strike race as a factor for university and college admissions. Many expect the result will be more white and Asian American students on American campuses and fewer Black and Hispanic students.
“For everybody who's in the upper-education business, they knew that affirmative action, as we've known it, is done,” said Loyola law professor and CBS News analyst Laurie Levenson.
Stacy Hawkins, vice dean and professor of law at Rutgers University, says the vast majority of colleges and universities don’t rely heavily, if at all, on race, so the decision really affects the nation's most selective schools, such as Harvard.
“Harvard was very clear in defending its admissions policy,” Hawkins said. “If they are no longer allowed to consider race and ethnicity, the percentage of Blacks and Hispanics in their entering classes will decline dramatically.”
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Hawkins and others say admissions offices will have to be very creative if they want to maintain diversity.
“We're likely to see even new strategies emerge as every college and university that is highly selective in this country starts to think about how they can retool their admissions to accommodate for this court decision, without suffering dramatic declines in their racial and ethnic diversity.”
Students for Fair Admissions, Inc. filed the lawsuits against Harvard and UNC in 2014, saying that there were other, race-neutral ways for colleges and universities to achieve an inclusive student body, such as using socioeconomic status as criteria and ending the preference for donors and children of alumni.
In the nine states that already prohibit consideration of race in admissions to public colleges and universities — Arizona, California, Florida, Georgia, Michigan, Nebraska, New Hampshire, Oklahoma and Washington — the change led to a steep drop in minority enrollment at public universities, according to the Associated Press, and years of experimentation to find alternatives to affirmative action have left no clear solution. Colleges in those states tried giving preference to low-income families, admitting top students from every community in their state, and other strategies, and they still saw enrollment of Black and Hispanic students drop.
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But Levenson said there are some subtleties to the majority opinion that people might want to pay attention to. Chief Justice Roberts left a little door open, she said.
“Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university,” he wrote.
But when students write about their racial experiences in their admissions essay, how can the university use that information? It’s not clear how it will play out, Levenson said, and it will likely be much more burdensome for admissions offices.
“The safest bet is that if a student talks about race in their admissions essay, and the college or university is going to consider it, that they find some way to tie it to something that can be deemed a non racial criteria,” said Temple University assistant law professor Zamir Ben Dan.
Donald Harris, associate dean for academic affairs at Temple, said this is likely just the start of more cases on affirmative action as universities discover what admissions officers can do.
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The University of Pennsylvania joined with 14 other colleges and universities last year in supporting Harvard and UNC in the Students for Fair Admissions cases. Penn law professor Tobias Wolff provided the following statement:
“Today’s ruling deals a terrible blow to the ability of universities in the United States to assemble pluralistic student bodies and create rich and deep communities with the life experience necessary for expansive learning. Affirmative action is not completely dead following this ruling but it has been vastly diminished as a tool and what remains will likely be targeted by hostile litigation.
“One of the worst features of the Court’s opinion is its moralistic condemnation of efforts to address the continuing structural impact of three and a half centuries of enslavement, genocide and apartheid. Chief Justice Roberts pulls language from earlier rulings by the Court that were explicitly about dismantling White Supremacy and apartheid and holds — as the constitutional law of the United States — that today’s efforts to fight against the continuing impact of that apartheid are the moral equivalent of the apartheid itself. This sententious approach is not surprising given past writing by these jurists, but it is deeply disappointing.”
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It is extraordinarily unusual behavior for the court, Levenson said, with a new conservative majority feeling so comfortable with disregarding or just not following decades of legal precedent.
“We saw that last year in the Dobbs decision, which overturned Roe v. Wade. And that was pretty startling. Here, they're basically saying that the prior decisions regarding affirmative action have timed out: ‘You know, it's just too bad. We don't need affirmative action anymore, and therefore we won't have it,’” she said.
“And looking back on decisions from, like 2003, there's the Grutter case. You have Justice [Clarence] Thomas saying, ‘I'm overturning it’ — and they don't have that problem in their own minds of overturning precedent. That's very different from how the court ordinarily works.”
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