What Comes After Race-Conscious Affirmative Action

Written by Diontre Davis, Joint International Chair of The Young People Advisory Board

Image by Francis Chung/E&E News/POLITICO


The State of Diversity in Higher Education


On June 29th, 2023, the Supreme Court ruled against race-conscious Affirmative Action in higher education admissions in Students for Fair Admissions (SFFA) v Harvard and Students for Fair Admissions v UNC. The court’s decision is likely to cause a nationwide decrease in the admissions of students of color.[1] The court’s opinion on this topic has changed drastically over the last few decades. As a result, underrepresented racial and ethnic groups will be on the negative end of the consequences of this new ruling. The number of students of color admitted in universities will decrease significantly. Alternative policy solutions must address legacy admissions, standardized testing, and financial barriers. These alternatives can mitigate the negative impacts of removing race-conscious Affirmative Action and increase diversity of students admitted to higher education.[2]



What Led to the Overturn of Race-Conscious Affirmative Action


The Supreme Court’s view of race-conscious Affirmative Action has shifted significantly over the past few decades. The roots of Affirmative Action can be traced back to the Civil Rights Movement of the 1950s and 1960s. Initially, Affirmative Action aimed to create equal opportunities for minorities to apply for job openings. The term Affirmative Action was introduced into policy when President John F. Kennedy created the Committee on Equal Employment Opportunity in 1961 and issued Executive Order 10925. The original intent was to encourage employers to hire marginalized people to end discriminatory hiring practices.[3]

Affirmative Action was then further extended to end discrimination in higher education admissions after the 1978 Supreme Court decision in Regents of the University of California v. Bakke. The decision in Regents of the University of California v. Bakke referenced the Fourteenth Amendment’s Equal Protection Clause to allow limited consideration of race in higher education admissions.[4] This standard of Affirmative Action would remain for the next few decades to give applicants equal opportunity in the workplace and in education, regardless of race, gender, religion, ethnicity, nationality, and disability. The outcome revolutionized higher education.

In 1994, the U.S. Department of Justice issued guidance on Title VI of the Civil Rights Act of 1964. Then Secretary of Education, Richard Riley, laid out guidance incentivizing universities to promote nondiscriminatory requirements. Universities that complied federal funds for student aid programs, implement recruitment, and retention programs.[5] While Affirmative Action increased the admission rates of underrepresented groups in higher education, many opponents instead viewed it as a discriminatory practice.

While the Regents of the University v Bakke was influential for applying race-conscious Affirmative Action, several other cases arose over the decades challenging the legitimacy of its usage., including the 2003 cases, Grutter v Bollinger and Gratz v. Bollinger. The Supreme Court’s final decision in Grutter upheld the University of Michigan Law School’s Affirmative Action admissions policy but struck down the undergraduate’s admission policy in Gatz because it awarded applicants points in admission process solely based on race.[6] Additionally in 2013 and 2016, multiple groups challenged the admission policies of the University of Texas at Austin’s usage of Affirmative Action, Fisher v University of Texas at Austin (I, and II).[7] The number of assaults grew, questioning the legitimacy of Affirmative Action and whether it violates the Equal Protection Clause.[8] , all coming to a head in the SFFA v Harvard and SFFA v. UNC decision.


The Consequences That Threaten Diverse Admissions in Higher Education


Racial-ethnic students may face additional barriers getting accepted into colleges and universities, which will decrease the diversity within these institutions.[9] In the 1990s, Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, Washington, and California banned considerations of race from the college admissions process. These states have all witnessed a decline in racial-ethnic groups universities in these states.[10] In one of the largest states to implement this action, California’s university enrollments of Black and Native American students dropped between 30 to 40 percent in the years 1997-2017.[11]

Following the Supreme Court’s decision, colleges and universities could have large drops in admissions of Black, Hispanic, Native Americans, and Asian Americans. Marginalized students of color will have less of a chance to have equitable access to knowledge and skills from higher education to achieve higher paying jobs, especially in STEM fields.[12]  Schools with a highly selective admissions process could expect a 10% drop in Black and Hispanic admissions, especially universities such as Harvard, Yale, Brown, and Duke.[13]


Policy Alternatives Promoting Diverse Admissions in Higher Education


Despite the massive changes in higher education admissions, several policy solutions could address diminishing diversity of students in higher education. An executive order to end legacy admissions is one policy alternative. The executive branch could purse a pathway to an executive order that cites a law from Congress and utilizes the powers of the Equal Protection Clause of the Fourteenth Amendment to forbid the usage of legacy admissions on the ground of denying higher education opportunities from students of color in favor of applicants with familial ties to alumni. Between the years 1998-2008, at least 70% of alumni from the top 100 universities in the country provided donations to their respective universities to incentivize legacy preferences for their children.[14] Additionally, between 2014-2017 legacy students had acceptance rates 31% higher than regular applicants at 52 institutions.[15] These procedures are discriminatory toward first generation college applicants of color who will have an even less chance of getting admitted over legacy students now that race-conscious Affirmative Action admissions are unconstitutional.[16] Ending legacy admissions could help make the higher education admission process more equitable. After Johns Hopkins University ended preferences in legacy admission in 2014, the percentage of first-generation students in their program increased by approximately 10 percent and the percentage of Pell-eligible students increased by about 7 percent between 2013 and 2021. [17]

Another alternative is Congress enacting legislation that incentivizes state and local schools to stop using standardized testing in the higher education admission process. Congress could develop legislation that provides federal funding that can be used for financial aid to state and local schools, but only on the condition that these schools drop standardized testing scores as a requirement for admissions. Standardized testing is another admissions process that disproportionately benefits white elites and doesn’t increase [18] The graph below shows standardized like the SAT cause larger disadvantages to minority applicants and reduce the chance of Black, Hispanic, or Latino students from getting admitted into higher education institutions.

Colleges are already beginning to phase out standardized testing as a requirement for admissions. A 2017 study by Vox shows that universities that adopted a test-optional admissions format from 2005-2006 and 2015-2016 had a 10% to 12% increase in Pell-grant recipients for first-time students from underrepresented racial/ethnic backgrounds compared to schools using the ACT and SAT.[19]

Lastly, there is the alternative of utilizing Affirmative Action not in the form of race-conscious admissions, but in a socioeconomic way to increase diversity in universities.[20] An executive order could be issued to utilize socioeconomic Affirmative Action as a tool for supporting students from less affluent backgrounds. In SFFA v UNC case, the University of Michigan submitted an amicus brief that explicitly stated class-based admissions do not increase racial diversity and that using it as “as the sole means to increase non-white enrollment can exacerbate the stereotype rather than alleviating them.”[21] Research supports this claim that the use of socioeconomic-based affirmative action is fairer and would not have the same disproportionate impacts as race-based admissions because more low-income white students would also gain admissions to higher education institutions. [22]


[1] “The Supreme Court’s Affirmative Action Decision: SFFA v. Harvard ….” Accessed December 3, 2023. https://www.naacpldf.org/case-issue/sffa-v-harvard-faq/.

[2] “Moving Beyond the Supreme Court’s Affirmative Action Rulings | ACLU.” Accessed December 3, 2023. https://www.aclu.org/news/racial-justice/moving-beyond-the-supreme-courts-affirmative-action-rulings.

[3] “A Brief History of Affirmative Action and the Assault on Race ….” Accessed December 3, 2023. https://edtrust.org/resource/a-brief-history-of-affirmative-action-and-the-assault-on-race-conscious-admissions/.

[4] “Regents of the University of California v. Bakke | Oyez.” Accessed December 3, 2023. https://www.oyez.org/cases/1979/76-811.

[5]  “Nondiscrimination in Federally Assisted Programs.” Accessed December 3, 2023. https://www2.ed.gov/about/offices/list/ocr/docs/racefa.html.

[6] “Grutter v. Bollinger – Oyez.” Accessed December 3, 2023. https://www.oyez.org/cases/2002/02-241.

[7]  “The Supreme Court Strikes Down Affirmative Action at Harvard and ….” Accessed December 3, 2023. https://crsreports.congress.gov/product/pdf/LSB/LSB10893.

[8] “How Americans view affirmative action in college admissions, hiring.” Accessed December 3, 2023. https://www.pewresearch.org/short-reads/2023/06/16/americans-and-affirmative-action-how-the-public-sees-the-consideration-of-race-in-college-admissions-hiring/.

[9] “The Supreme Court’s Affirmative Action Decision: SFFA v. Harvard ….” Accessed December 3, 2023. https://www.naacpldf.org/case-issue/sffa-v-harvard-faq/.

[10] “Long-Run Changes in Underrepresentation After Affirmative Action ….” Accessed December 3, 2023. https://journals.sagepub.com/doi/10.3102/0162373720904433.

[11] “Affirmative Action Statistics in College Admissions – BestColleges.com.” Accessed December 3, 2023. https://www.bestcolleges.com/research/affirmative-action-statistics/.

[12] Understanding Diversity within the Higher Education Faculty Pipeline.” Accessed December 3, 2023. https://www.urban.org/research/publication/understanding-diversity-within-higher-education-faculty-pipeline.

[13] “The Neglected College Race Gap: Racial Disparities Among ….” Accessed December 3, 2023. https://www.americanprogress.org/article/neglected-college-race-gap-racial-disparities-among-college-completers/.

[14] “Affirmative action for white college applicants is still here – Vox.” Accessed December 3, 2023. https://www.vox.com/politics/2023/6/30/23778906/affirmative-action-white-applicants-legacy-athletic-recruitment.

[15]  “Quantifying the Advantage for Legacy Applicants – Inside Higher Ed.” Accessed December 3, 2023. https://www.insidehighered.com/admissions/article/2017/08/21/data-provide-insights-advantages-and-qualifications-legacy-applicants.

[16] “Affirmative Action for the Rich – The Century Foundation.” Accessed December 3, 2023. https://tcf.org/content/book/affirmative-action-for-the-rich/.

[17] “The Future of College Admissions without Affirmative Action.” Accessed December 3, 2023. https://www.urban.org/urban-wire/future-college-admissions-without-affirmative-action.

[18] “SAT math scores mirror and maintain racial inequity | Brookings.” Accessed December 3, 2023. https://www.brookings.edu/articles/sat-math-scores-mirror-and-maintain-racial-inequity/.

[19] “How the SATs lost their grip on college admissions – Vox.” Accessed December 3, 2023. https://www.vox.com/23700778/sat-act-standardized-tests-college-high-school.

[20] “What Levels of Racial Diversity Can Be Achieved with ….” Accessed December 3, 2023. https://onlinelibrary.wiley.com/doi/10.1002/pam.22056.

[21] “The Future of College Admissions without Affirmative Action.” Accessed December 3, 2023. https://www.urban.org/urban-wire/future-college-admissions-without-affirmative-action.

[22] “Affirmative Action, Mismatch, and Economic Mobility After ….” Accessed December 3, 2023. https://cshe.berkeley.edu/publications/affirmative-action-mismatch-and-economic-mobility-after-california%E2%80%99s-proposition-209.