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  • Writer's pictureAndrew Alam-Nist

Affirmative Action is Out – What Now?

Updated: Jul 3, 2023

Introduction


On Thursday, the U.S. Supreme Court eviscerated state and private universities’ ability to consider applicants’ race in their admissions process, ending a practice known as affirmative action. It is one of a slew of divisive rulings that the most Conservative Supreme Court in generations has passed in the last couple of years.


Proponents of the ruling argue that it makes college admissions fairer, replacing oblique discrimination with a focus on the competence, background, and experiences of applicants. For opponents, (of which I am one) the ruling instead curtails the ability of universities to create a vibrant, racially diverse student body and tragically limits the potential of universities – increasingly crucibles in which future leaders are molded – to propel historically underrepresented groups into positions of power. However, it is worth noting that, unlike several previous rulings from the current court, this ruling is in step with public opinion. Good or bad, the view that affirmative action is unfair and discriminatory is the dominant view among the American public.


The impact of the court’s decision on college admissions will undoubtedly be drastic. However, what this impact actually will consist of is far less certain. University leaders will try to build a racially diverse class in spite of the ruling. In a letter to students yesterday, Peter Salovey, President of Yale, said “We will continue to foster diversity in its many dimensions and will use all lawful means to achieve it.” How they will try to do so, and how the law will respond, remains up in the air. In this article, I want to consider some of their likely strategies and how the Students for Fair Admissions vs. Harvard rulings will reshape college admissions and college more generally.


1. Incoming Classes at Elite Universities Become Far Less Diverse


The obvious effect of Thursday’s ruling is that, in states that did not already forbid affirmative action, incoming college classes will become less diverse – at least to some extent. California, which banned affirmative action in 1996, is good evidence of this. Following the state’s ban on using race as a criterion for admission, the share of Black and Hispanic students accepted into the U.C. Berkeley and U.C.L.A. classes of ‘98 fell by 40%. Likewise, when Michigan banned affirmative action in 2006, Black undergraduate enrollment in its Ann Arbor Campus decline from 7% to 4%. Most models, while not as pessimistic, are still not especially hopeful. A 2009 model from California state university finds that the share of underrepresented minority students at top universities would drop by about 10% with an end to affirmative action.


It is worth bearing in mind, however, the impact of the ruling will be localized to certain types of universities. Affirmative action policies only make sense in selective universities, a small share of the national total. While there are 4,000 universities in the United States, only 200 accept fewer than 50% of students. The upshot of this is that most college students will be unaffected by the ruling: their colleges don’t practice affirmative action.


However, the universities which do are likely to do everything in their power to circumvent the recent rulings. Rich, shrewd, and stubborn, it seems probable that a titan like Harvard could go against the grain of Roberts’ Thursday opinion and reconstruct a class that is essentially as diverse as before. There are many ways they could try to do so.


2. The Personal Essay Becomes More Important


Chief Justice John Robert explicitly in his majority opinion carved out a pathway for colleges to consider race in some capacity. “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise,” wrote Roberts.


Universities, seizing on this ruling, will likely see the personal essay as a way to fill the vacuum left by affirmative action. This will lead them to both increase the role of personal essays in their selection process and skew essay questions to topics that allow the discussion of race. In the year I applied to universities, Columbia had a question asking how I would contribute to diverse communities. I expect questions like this will be ever more important.


3. Tests Become Less Important


The college essay becoming more important has one significant effect on the rest of the application – it all becomes less consequential relatively. This is something universities will actively embrace, as traditional, ‘objective’ indicators of success, particularly the SAT and ACT, often disadvantage underrepresented students.


Colleges will look to reduce the role of standardized tests or even scrap them entirely. Most elite universities have already started to walk down this path by not requiring SAT or ACT scores. While this ‘test-optional’ policy was originally a stopgap measure during the Covid-19 pandemic to avoid discriminating against students who couldn’t take the exams, these policies have long outlived the lockdowns that brought them into existence. Expect them to live quite a bit longer.


Causing tests to be used less frequently is the opposite of what the majority opinion intended. Roberts was outspoken in his belief ruling would help restore meritocracy and objectivity to the college application system. Ironically, the traditional indicators of excellence – even grades – will likely become less important in the coming years because of the ruling.


4. Colleges Target Certain Groups of Students


Another strategy colleges could use to increase the diversity of their incoming class would be to target groups that are correlated with underrepresented minorities. This is something that universities have already begun to announce. The University of Virginia, for instance, has stated it will target 40 schools from eight regions around the state that are historically underrepresented (what they don’t say is that this is intended to lead to a more racially diverse class).


This could make the people from underrepresented minorities that universities accept become more representatives of the groups they come from. Right now, many elite universities accept the most wealthy and privileged minorities because they check a racial box, even if they have not experienced overwhelming challenges. By forcing universities to focus on groups associated with certain racial groups, this will be harder.


Perhaps adversity will even become the new race. President Biden has called for the creation of adversity indexes to replace affirmative action, comprehensively describing the challenges a student has had to overcome, including race. This is not actually a bad thing.


5. Colleges (potentially) Reconsider Athletic and Legacy Admissions


Colleges, driving to diversify their classes, could also reconsider traditional advantages given to certain types of applicants – notably athletic and legacy admissions. Both legacy admissions – students whose parents went to the college in question – and, interestingly, athletic admissions –recruited athletes – reduce diversity. A study by Duke Economist Peter Arcidiacon found that the elimination of athletic admissions would substantially increase the number of Hispanic students accepted and decrease the number of white students accepted at Harvard.


However, universities willingly removing either pathway to admission seems unlikely. Since colleges gain both prestige and money from having strong athletic teams, it is improbable they would dilute the strength of their varsity teams by radically altering the system in pursuit of marginal diversity gains.


Likewise, legacy admissions help to provide elite universities with a rich and active alumni network, as parents gaze at the allure of their children attending their alma mater. To abolish legacy admissions would be to abolish the donations, free interviews, speaker engagement, and other benefits universities can reap from former students who want to give their children a leg up.


However, this change is not entirely infeasible. This is not because of the universities’ bleeding hearts. Instead, they may face enough external pressure that they finally cave. In the recent ruling, Neil Gorsuch decried legacy admissions. The Biden administration is currently looking into abolishing it entirely. A 2021 poll found that 7/10 college students find legacy admissions unfair. Before long, universities may have no choice but to eliminate the advantage currently offered to children of alumni.


6. Legal Whack-A-Mole Between Colleges and Courts


Thus Far, I have described several ways colleges and universities could try to legally circumvent the ruling recently imposed. However, they have one more radical strategy to try and increase the diversity of their classes – to not try to follow the law at all. Or at the very least, claim an interpretation of the law that is overly favorable toward increasing diversity. “I think a very plausible outcome of this will be that schools will just cheat and say, ‘Let’s see who gets sued,’” said Richard Sandler, a professor at U.C.L.A.


What does or does not fall within the purview of the law is not clear. Take, for instance, focusing on diversity in questions. Justice Roberts specifically stated that discussing one’s lived experience should not be allowed to be used as a backdoor to stealthily promote more students of certain races. The upshot of this is any initiatives that are implemented to promote diversity are almost certain to face abundant lawsuits.


However, this may favor universities. The basic nature of lawsuits is that they take a long time, and are very expensive. While the contours of the new system are being defined, universities can adopt all kinds of legally nebulous strategies to increase diversity – if they are proven illegal, they can just say “Oops I didn’t know the law should be interpreted this way”. With a “they can’t sue us all mentality”, this may lead to a game of legal Whack-A-Mole, where new strategies are brought by universities to increase diversity, only to be periodically forbidden by different lawsuits.

Looking Forward


Affirmative action is hardly the first major precedent the current Supreme Court has struck down, and it will not be the last one either. Striking down affirmative action leads the door open to axin the ability to use race in corporate employment. Soon, employment schemes aimed at particular minorities may be a relic of the past.


All this leads to the following question – will America be made better from the recent ruling? In some small ways, probably. But also, on the whole, I don’t think it will. Regardless of whether you believe in affirmative action, the upshot of the case seems to be a more complicated, less transparent college application system with legal challenges abounding left, right, and center. For most universities, mitigatory strategies will not be enough to prevent a precipitous decline in Black and Hispanic students. That does not seem better to me.



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