Conservative Lawsuit Against Harvard Could End Affirmative Action

Four decades ago, the US Supreme Court cited the admissions program at Harvard College as an “illuminating example” of how race could be used as one of several factors in college admissions.

“This kind of program treats each applicant as an individual in the admissions process,” the court noted of Harvard’s holistic admissions program in the 1978 affirmative action case known as Regents of the University of California v. Bakke.

Holistic admissions is a comprehensive process where more than one reviewer considers factors beyond academic merit, including but not limited to race.

Ironically, the admissions program at Harvard College is now under fire in a federal district court in Boston.

Students for Fair Admissions, a group of Asian-American students, alleges they have been systematically discriminated against by Harvard’s holistic admissions policy. The group is led by a conservative activist named Edward Blum, who has also supported prior efforts to defeat affirmative action.

They claim Harvard discriminates against Asian-Americans by restricting the number of Asian-Americans admitted to the school despite their having higher test scores and better grades than other racial groups. They also allege that Asian-Americans were rated lower on personality traits.

Their case has the support of the US Department of Justice.

The outcome of the case, which could be headed to the Supreme Court, could deal a death blow to race-conscious affirmative action in the United States. (More on race-neutral affirmative action below.)

This despite the fact that race-conscious affirmative action in the US is not even six decades old, beginning with an executive order first signed in 1961 to ensure racial equality in hiring and employment. Yet, the race-conscious discrimination that led to those orders in the first place stretches back for centuries. It involves hundreds of years of the enslavement of Africans in what’s now known as America, and the taking of land from indigenous peoples.

As mentioned in a research article, I published as this month’s Harvard admissions trial began, the US is not the only country that uses affirmative action to widen opportunity in higher education for historically oppressed groups, nor is it the first. India, which began the practice in during its founding in 1947, and South Africa, Israel and Brazil are among the other countries that employ the practice.

As an education researcher who focuses on inequality in how students attain higher education, I’m curious if the US could become the first of these nations to scrap race-conscious affirmative action in its colleges, many of which have historically have been white bastions of privilege. My examination of the legal attacks on affirmative action in the US shows that the policy is being gradually curtailed and its purpose narrowed.

The Case for Diversity

In 1996, a case known as Hopwood v. Texas ended social justice as a defensible argument for affirmative action – leaving only diversity as a legitimate aim.

The evidence supporting diversity has been overwhelming. This research has found that a racially diverse student body particularly benefits white students, who are acutely segregated in primary and secondary schools, more so than any other racial group.

Those studies, as well as other analysis, suggest that racial and ethnic diversity increases cognitive gains and real-world readiness for all students through increased engagement and critical thinking.

Despite the proven benefits of diversity, a ruling against Harvard has the potential to close the door on affirmative action in the US for good. If the case goes to the US Supreme Court, affirmative action is not likely to survive given that Justice Brett Kavanaugh – who leans against affirmative action – recently joined the court.

Merit and the Limits of Supposed Objective Measures

GPA and test scores are often presented as an objective and fair way to decide who gets admitted to a given college, but those things have been widely found to favor more well-off children.

For instance, students from more affluent and white families have higher test scores. This is largely because they have access to better resourced schools and college preparation. It also stems from the fact that their parents often have more financial and social resources that can be used to prepare them for college.

For this reason, many colleges look beyond test scores and grades and consider things such as personal essays and interviews. They look for things like leadership potential and intellectual curiosity that suggest the potential for success once students arrive on campus. Many employers and educators argue that measures like these more effectively predict success than test scores.

Measuring Diversity Through Affirmative Action

Colleges have also tried to employ racial quotas to make their campuses more reflective of society, but federal courts struck down the use of quotas in 1978 and formulas assigning admissions points to racial minorities in 2003. However, the court continued to uphold the merits of diversity in selective university admissions when race is one of a range of factors being considered.

These non-racial factors may favor rural states with fewer applicants, children and siblings of alumni, and applicants demonstrating athletic excellence with or resilience in the face of economic adversity.

Alternatives to Race-Conscious Admissions

With a narrower ability to use race, “race-neutral” affirmative action emerged in the late 1990s and 2000s, after race-conscious affirmative action was banned in California in 1996, Texas in 1997, and Florida in 1999.

This new affirmative action took on the form of percentage plans in which a student’s high school rank could be used as a means to achieve diversity in the state’s public universities.

Interestingly, class rank is an effective stand-in for racial and socioeconomic diversity only if high schools are highly segregated by race and social class – that is, parental education, family income and family resources. In other words, the ability of colleges to achieve diversity depends on segregation in high schools.

Did these race-neutral approaches work? A variety of distinct and rigorous studies by interdisciplinary education scholars, economists and sociologists found that using social class instead of race was less effective than using race to achieve racial diversity.

There are two important findings related to the future of race-conscious affirmative action and specifically the Harvard case.

First, race-conscious affirmative action bans – even when replaced by class-conscious high school percentage rank plans – typically result in fewer black and Latino students at state flagship schools. How many fewer varies by study, racial or ethnic group, and by state.

Second, California’s top 4 percent high school percentage plan – still a form of affirmative action – was followed by enrollment gains for Asian students at most state public universities. This finding implies California’s class-based affirmative action benefits Asian students more than race-based affirmative action.

Taking race out of the equation would benefit Asian students at elite colleges as well, based on a simulation study done by Princeton researchers who found a 6 percentage-point gain in Asian-American students’ admissions to selective colleges.

By contrast, the simulation study found a less than a 1 percentage point difference for white students before and after race was taken out of consideration. Notably, Asian-American higher education scholars who focus on affirmative action co-authored and signed on to a brief filed in support of Harvard and race-conscious affirmative action this year. Asian-American and Asian Pacific American professional organizations also publicly announced support of race-conscious affirmative action after the most recent Supreme Court decision upholding it, in 2016.

American Exceptionalism

Family background remains the greatest predictor of a student’s academic outcomes, above and beyond a student’s effort, skill and pursuit of excellence. This includes race, above and beyond class. Racial inequality in higher education persist. It hasn’t yet disappeared as some might argue.

And yet, research continues to find that diversity on campus enhances students’ learning, the quality of science and innovation and preparedness for life beyond the academy. And even if it didn’t, the meritocracy undergirding the American experiment requires opportunity and access for all, regardless of color.

Lara Perez-Felkner receives research funding from the National Science Foundation, the Gates Foundation, and the ECMC Foundation.