Supreme Court May Soon Ban Affirmative Action — Here’s What That Means

The U.S. Supreme Court is expected to wipe out affirmative action in higher education any day now.

If the erasure of a decades-old precedent occurs, the crucial question will be: How to bolster diversity on college campuses without the help of race-conscious policies? Universities will have to be creative, experts say, and consider approaches that will have an outsized impact on marginalized groups — but won’t make race explicit.

These strategies to address a playing field where racial gaps in college enrollment and completion persist include harnessing ZIP codes and family wealth as substitutes for race. Some observers, however, warn about the weaknesses of such alternatives.

“To my knowledge, there just hasn’t been a measure that’s successfully achieved significant levels of racial diversity without directly considering race,” said Bryan Cook, the director of higher education policy in the Center on Education Data and Policy at the Urban Institute.

Determining what to do before the high court releases an opinion is difficult. But using geography as a proxy for race could offer one way forward, according to Timothy Welbeck, an assistant professor of instruction in the department of Africology and African American studies at Temple University. Colleges could target students from traditionally disadvantaged neighborhoods.

“Universities might say, ‘We know that these parts of the city have historically housed Black and brown people who’ve been denied opportunities’ and then create outreach programs aimed at people from those particular communities and award them scholarships,” he said.

At least to an extent, we’ve already seen these kinds of efforts. In 1997, George W. Bush, at the time the Republican governor of Texas, signed into law HB 588, which guarantees admission to all state-funded universities for Texas high school students who graduate in the top 10% of their class. (That policy was later changed to the top 6% for the University of Texas at Austin.)

“There was an understanding that parts of Texas are still segregated, and the hope was that colleges could get qualified students from many different areas and achieve a level of diversity that was more consistent with the population of the state,” Welbeck explained.

Yet universities could secure diversity in other ways, some experts contend.

In a February piece for Slate, Melvin L. Oliver, Peter Dreier, and Richard D. Kahlenberg — a former president of Pitzer College, a politics professor at Occidental College, and a nonresident scholar at Georgetown University’s McCourt School of Public Policy, respectively — argued that a promising yet under-discussed approach is providing an “admissions boost” to students whose families have low or negative levels of wealth. (Kahlenberg is with the team litigating against Harvard University and the University of North Carolina’s admissions policies in the two affirmative action cases the court is currently deciding.)

“The omission of wealth is a mistake two times over,” the authors wrote. “As a matter of fairness, because more than virtually any other factor, wealth determines opportunity in America. And as a matter of promoting diversity, wealth should be used in admissions because of the huge wealth gaps between white and Black families and white and Hispanic families.”

Oliver, Dreier, and Kahlenberg highlighted key data points to paint a vivid picture of just how wide the racial wealth gap is. Per a 2019 study by the Federal Reserve Bank of St. Louis, median Black wealth is $23,000, which is only 13% of median white wealth, $184,000.

“This means that any admissions policy that considers wealth will de facto offer the school a path toward racial diversity,” the authors concluded, underlining that “using wealth in admissions is not only fair, but will also boost racial diversity more than other factors, such as parents’ income and education.”

The limitations of Race Neutrality

Donald Harris, associate dean for academic affairs and the equity, diversity, and inclusion liaison at Temple University Beasley School of Law, didn’t share this optimism.

He explained that in 1996, when California’s Proposition 209 outlawed state governmental institutions from considering race in employment decisions and higher education admissions, schools such as University of California, Berkeley, and UCLA started to use some of the above proxies. But they simply haven’t worked.

“There really is no race-neutral way to achieve what you can if you take race into account,” Harris said.

Cook, at the Urban Institute, echoed these sentiments. He underscored that schools in the nine states that have banned affirmative action employ race-neutral policies but struggle to maintain diversity, and that wealth-based proposals woefully neglect middle-class Black students whose families continue to grapple with the toll of decades of discrimination.

Harris cautioned that the court’s Republican-appointed justices could go further than many expect, and rule that race and anything that approximates it are unconstitutional — a decision that would put higher education professionals in a real bind. (Notably, Chief Justice John Roberts has made clear his feelings about race-conscious practices before. In a 2007 case that addressed public school integration plans, he declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”)

“But my hope,” Harris added, “is that they’ll simply say that colleges can use race-neutral alternatives in admissions, and we’ll start looking at things such as geography and socioeconomic status, even though they’re far from perfect.”

Rashad Robinson, the president of Color of Change, a racial justice organization, stressed that he and his colleagues are calling on universities to reveal their plans for ensuring diversity on their campuses and pushing for investments in schools predominantly serving Black students.

We know, he said, that colleges are already creative when it comes to various aspects of higher education — witness legacy preferences, which largely benefit white and wealthy applicants — so he wants to see what they’ll do for marginalized students.

“If universities can give credit for hot yoga — I’m joking a little but not entirely — then how they respond to this decision that’s coming, that’s threatening to drag us back to the Jim Crow era, should be a big part of how they’re rated, how they’re rewarded or penalized in college rankings,” Robinson argued. “Color of Change will be doing everything it can to hold institutions accountable.”

In a future where affirmative action is prohibited, universities can either defy the court and face legal ramifications — but maybe build a sturdier case for race-conscious policies — or they can walk a tightrope, nurturing racial diversity without running afoul of the bench’s decision.

One way to think about the latter approach, according to Zamir Ben-Dan, an assistant law professor at Temple University, is like this: Schools will have to hone the playbook that opponents of social equality follow.

“Supporters of racial diversity must adopt a language that’s race neutral, that allows them to promote the same things they promoted before, but without explicitly centering or mentioning race,” he said. “That’s in large part why those who perpetuate racial inequality are able to get away with it — because they don’t talk specifically about race.”