January 07, 2020 HUMAN RIGHTS

Affirmative Action in Higher Education: Relevance for Today's Racial Justice Battlegrounds

by Genevieve Bonadies Torres

Affirmative action has inspired fierce debates and repeated litigation. It is also frequently misunderstood. As a conceptual framework, affirmative action remains relevant for a national racial justice agenda. Its surviving policies are critical for dismantling institutional practices that limit opportunities for highly qualified African Americans and other marginalized racial minorities.

John F. Kennedy first used the term to address racial disparity in March 1961. In Executive Order 10925, President Kennedy ordered government contractors to “take affirmative action” to realize the national goal of “nondiscrimination.” This policy reflected a recognition that centuries-old racism (by law and custom) innately restricted the economic, political, and educational opportunities for African Americans and other minority groups. For instance, colorblind seniority systems protected white workers against job layoffs because senior employees were usually white due to past and present discrimination in hiring. Likewise, a colorblind college admissions process favored white students because of earlier and ongoing educational advantages associated with race. The conceptual thrust behind affirmative action is that proactive efforts are necessary to disrupt an otherwise uneven playing field.

Over time, however, courts have significantly shaved down the contours of permissible affirmative action policies. In the 1960s and 1970s, colleges and graduate schools began developing affirmative action policies to expand access to disadvantaged and underrepresented segments of society, including racial minorities. In 1978, the Supreme Court heard its first challenge to such programs in a lawsuit brought by Allan Bakke, a white man who had been denied admission to the University of California at Davis’s medical school (UC Davis) (Regents of the Univ. of Cal. v. Bakke). UC Davis had set aside 16 of 100 seats for individuals who identified as “economically and/or educationally disadvantaged” and members of a “‘minority group’ (blacks, Chicanos, Asians, American Indians).” UC Davis offered several justifications for its program, including that: (1) it rectified past discrimination in medical schools and the medical profession; (2) it countered present societal discrimination; (3) it increased the number of physicians in underserved communities; and (4) it promoted the educational benefits that flow from an ethnically diverse student body.

The Supreme Court was closely divided. Four justices would have upheld the constitutionality of UC Davis’s program under the Equal Protection Clause and Title VI on grounds that it remedied the effects of past societal discrimination. The Court’s four conservative-leaning justices would have barred universities from considering race at all. The deciding vote was cast by Justice Lewis F. Powell Jr. Applying strict scrutiny, Justice Powell rejected UC Davis’s argument that it had a compelling interest in rectifying past discrimination and increasing medical practitioners in underserved communities. Instead, Powell only endorsed UC Davis’s argument that it had a compelling interest in the benefits of a diverse student body. Powell then rejected UC Davis’s race-conscious program based on its operation in practice. Powell found the 16-seat set-aside amounted to a quota that failed to meet the standards of narrow tailoring. In contrast, Powell endorsed the race-conscious plan submitted by Harvard University as part of its amicus brief. Harvard’s plan subjected all applicants to a highly individualized, holistic review process that considered race as one of many factors to admit students who were diverse across a range of dimensions, including socioeconomic status, geography, and race.

Affirmative Action in Higher Education: Relevance for Today's Racial Justice Battlegrounds

Affirmative Action in Higher Education: Relevance for Today's Racial Justice Battlegrounds

In the past two decades, the Supreme Court has repeatedly reaffirmed the legality of race-conscious admissions to promote racial diversity in higher education. In 2004, the Supreme Court heard a pair of cases brought by white applicants challenging race-conscious admissions policies at the University of Michigan and Michigan Law School (Gratz v. Bollinger and Grutter v. Bollinger). In handing down its rulings, the Supreme Court explicitly embraced Bakke and re-endorsed individualized review processes that consider race as one of many factors to promote diversity. The Supreme Court repeated this refrain as recently as 2013 and 2016, rejecting a lawsuit brought by Abigail Fisher (a white woman) challenging the University of Texas at Austin’s holistic, race-conscious policy on the grounds that the policy “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races” (Fisher v. Univ. of Texas at Austin).

While race-conscious admissions have survived numerous challenges in court, many civil rights advocates have expressed frustration with the current legal limitations of affirmative action and how it is currently practiced. Critics have expressed frustration with the prevailing diversity rationale for centering white students as the intended beneficiaries who extract educational value from minority students. Others, such as Sheryll Cashin and Sally Chung, have criticized the policy for losing its intended purpose of amending structural disadvantages, arguing it fails to adequately assist minority students from lower-socioeconomic backgrounds and ignores structural inequities.

Even advocates for race-conscious admissions have agreed with such criticisms. They acknowledge a comprehensive vision for racial equity must go beyond admissions and the diversity rationale. But they also argue that race-conscious admissions may not be a panacea for resolving racial inequities, but it also must not be abandoned. It remains a vital tool for ensuring talented students of all backgrounds can access quality higher education. Such advocates often emphasize the immediate, adverse consequences of ending race-conscious policies. Experiences in California and Texas are instructive. When UT-Austin stopped considering race from 1996–2004 due to a contrary decision from the Fifth Circuit (Hopwood v. Texas), the number of African American and Latinx students immediately declined, with African American enrollment dropping by 40 percent and Hispanic enrollment dropping by 5 percent (despite the rapidly increasing number of Hispanics in the admissions pool). California experienced similar declines after the passage of proposition 209, which banned affirmative action in education and employment. When implemented, African Americans experienced a 55 percent decline in admissions offers to UC Berkeley and UCLA, the state’s two most selective universities. Despite significant investment in race-neutral alternatives over 20 years, the UC system has never returned to its previous levels of diversity.

Today, top-tier universities suffer from abysmally low proportions of black, Latinx, and other minority students. A 2017 New York Times analysis observed that “black and Hispanic students are more underrepresented at the nation’s top colleges and universities than they were 35 years ago.” Our colleges cannot afford to scale back programs that expand racial inclusivity.

Unfortunately, a concerted effort is underway to do just that. Over the last decade, Edward Blum—a longtime opponent of civil rights programs—has spearheaded a series of lawsuits with the stated purpose of ending any consideration of race in admissions. Blum was the mastermind behind Fisher v. Univ. of Texas at Austin. After his failure in Fisher, Blum revised his approach to eliminate race-conscious admissions. He created the organization Students for Fair Admissions (SFFA) as a vehicle for his anti-affirmative action efforts. He publicly stated that he “needed Asian plaintiffs,” transparently pursuing a racially divisive strategy that tries to pit Asian Americans against other minority groups.

In 2014, SFFA (backed by Blum) filed two new lawsuits against Harvard University and the University of North Carolina-Chapel Hill (UNC) claiming the universities’ use of race exceeded lawful limits set by the Supreme Court under Title VI and the Equal Protection Clause. The Harvard lawsuit was novel in two respects. It was the first affirmative action case against a private university. It was also the first case to claim a university’s race-conscious policy intentionally discriminated against Asian Americans. Beyond these distinctions, the lawsuits largely rehash the same arguments of prior cases, asserting: Colleges should give greater weight to socioeconomic status in lieu of race; standardized tests provide the benchmark for who deserves admission; and there are sufficient levels of racial diversity across campus.

Both lawsuits promote a colorblind framework. The complaints urge the court to prohibit “any use of race or ethnicity in the educational setting” and ban admissions officers from being “aware of or learn[ing] the race or ethnicity of any applicant.” Taken to its logical end point, such relief would substantially alter the admissions process. Purging all reference to race would potentially prevent colleges from conducting interviews and recruiting applicants in person. It would also jeopardize students’ ability to submit essays and recommendations discussing how race or ethnicity has impacted their lives; list awards and activities indicating their race or ethnicity; or write about their immigrant stories, regardless of their country of origin. In effect, it would perversely penalize some applicants in the name of equal protection (especially non-white applicants who disproportionately face racial barriers).

Such “race-blind” relief also indicates Blum and SFFA are not genuinely interested in counteracting biases faced by the Asian American community. Research shows that effective methods for combatting racial bias involve race-conscious interventions, such as providing implicit-bias trainings to admissions officers or engaging in race-conscious recruiting to cultivate greater diversity among admissions officers. Banning all consideration of race further fuels a white admissions advantage. Evidence submitted during the Harvard trial showed white students would experience the greatest gains in admission under a race-blind system, with their share of the admitted class jumping from 40 percent to 48 percent.

A diverse coalition of students at Harvard and UNC—identifying as black, Latinx, Asian American, and Native American—came together to express support for race-conscious programs that promote greater racial diversity and inclusion. Their unified stance rejected Blum’s divisive strategy and recognized that reckoning with race remains necessary in light of our country’s past and present struggles with racial inequalities and overt racism.

In the Harvard lawsuit, the district court permitted this diverse coalition of students to submit testimony in support of race-conscious admissions during the three-week trial held in October 2018. For its part, SFFA did not present a single student to testify on their behalf, nor did SFFA submit a single student file containing implicit or explicit discriminatory statements, nor did SFFA’s experts consult a single student in forming their opinions.

The students’ testimony and application files humanized the reasons why race and racial diversity continue to matter in college admissions, on college campuses, and across our broader society.

To begin, the students explained how race provides critical context for authentically portraying their strengths and for colleges to more accurately evaluate their contributions to campus. For example, Itzel Vasquez-Rodriguez wrote her application essay on her “experiences as a young Xicana [indigenous Mexican-American] in Southern California.” A side-by-side of her personal essay—with and without references to her race—demonstrates how a race-blind system would undervalue her strengths.

The harms would cut just as deep for Asian American students like Thang Diep. In his essay, Diep shared how growing up his Vietnamese identity often felt “lost in translation.” At trial, he described how he was mocked for his accent and called racial slurs. His essay shared he ultimately reconnected with his Vietnamese identity in high school and excelled in his language-intensive magnet program. Diep testified that erasing his ethnicity would provide an incomplete picture of his strengths and re-inflict the harms of suppressing his identity for so long.

The students also testified to the profound benefits of cultivating sufficient numbers of racial minorities on campus. They described how this diversity across and within racial groups provided indispensable support for Harvard’s students of color who faced overt and subtle forms of racial hostility on campus. Sarah Cole, who identifies as black American, explained that she needed other black students to “lean on” on when she was “cursed at or physically assaulted” for marching through campus and asserting that black lives matter. When the campus was shaken by the deaths of Michael Brown, Eric Garner, and the slew of police shootings that followed, it was Cole’s responsibility as the president of the Black Students Association to lead the rest of the campus—white and Latinx, students and administrators—in finding a path forward to mourn and become better allies. Her testimony is a reminder of how students of color perform real and exhausting work every day as they are often tasked with mending the racial fault lines that divide campuses and our country. Such work necessitates a robust peer-support system.

The students’ testimonies also powerfully countered SFFA’s assertion that socioeconomic diversity could serve as a substitute for race. They spoke to how minorities of color face racial biases regardless of socioeconomic class. Their testimony is backed by numerous studies. Black students are more likely to be disciplined than their white peers engaging in similar behavior. This disparate treatment begins early. One study showed African American children are 3.6 times more likely than white students to be suspended from preschool—a disparity that, according to researchers at Yale, is linked to implicit bias among early childhood educators. As another example, those with ethnic-sounding names are less likely to receive callbacks for employment. Another illustration of race’s independent effects: Low-income black and Latinx families are more likely to live in neighborhoods with concentrated poverty as compared to poor whites.

The students’ testimonies also highlighted the distinct benefits derived from racial diversity on campus. As Vasquez-Rodriguez testified: “ethnoracial diversity is more visibly salient.” When she entered a classroom, she “took note mentally of the number of students of color,” and she intentionally sought out spaces with more nonwhite students because there she could “finally breathe.”

The students uniformly declared that SFFA’s race-blind regime resulted in an unacceptable drop in the number of minority students on campus. The undisputed evidence at trial indicated the number of black, Latinx, and other minority students on campus would decline by roughly 1,100 students, cutting their numbers by 50 percent. The students also emphasized that SFFA’s myopic focus on standardized test scores as a benchmark for who deserves admission was wholly misguided. Numerous research studies show tests such as the SATs have no meaningful correlation with college success; instead, they are most strongly correlated with socioeconomic and demographic factors, such as parents’ income, access to high-cost test-prep programs, parents’ education level, and race. Such tests also, by design, under-predict the capabilities of underrepresented minority students. The test creators throw out questions where underrepresented minority students do better and white students do worse. These racial skews, in combination with a phenomenon known as stereotype threat, systematically underestimate the ability of stigmatized minority students including those that identify as black, Latinx, and many lower-resourced Asian American subgroups.

On October 1, 2019, the Boston district court issued its decision upholding Harvard’s race-conscious admissions program on all counts. The decision resonated with the students’ testimony. Of note, the district court cited the students’ testimony to observe:

[I]t is vital that Asian Americans and other racial minorities be able to discuss their racial identities in their applications. As the Court has seen and heard, race can profoundly influence applicants’ sense of self and outward perspective. . . . Removing considerations of race and ethnicity from Harvard’s admissions process entirely would deprive applicants, including Asian American applicants, of their right to advocate the value of their unique background, heritage, and perspective and would likely also deprive Harvard of exceptional students who would be less likely to be admitted without a comprehensive understanding of their background.

The district court’s decision also rightly recognized that race-conscious programs remain vital, given racial disparities in the K–12 system, the inherent limitations of standardized testing, and the non-feasibility of relying on imperfect proxies for race. The decision also observed that Justice Sandra Day O’Connor’s prediction in 2004 that the need for race-conscious admissions programs may expire in 25 years seemed overly “optimistic and may need to change.”

The Harvard case now heads to appeal before the First Circuit. In spite of the significant legal victory and strong trial record in the Harvard case, affirmative action advocates have major work ahead. SFFA has vowed to take the Harvard case all the way up to a newly configured Supreme Court, which no longer includes Justice Anthony Kennedy, who secured the favorable ruling in Fisher (the last lawsuit to challenge race-conscious admissions). Meanwhile, SFFA’s case against UNC will proceed to trial in district court over the upcoming months. SFFA has also resurrected its lawsuit against UT-Austin’s race-conscious admissions program. This time, SFFA has filed in state court, arguing that “student body diversity is not a compelling interest” under the Texas state constitution and remedies code. New lawsuits have also been brought to challenge diversity programs that consider factors correlated with race (so called “race-neutral” programs), which Justice Kennedy expressly encouraged in Fisher and Parents Involved (Christa McAuliffe v. Bill de Blasio).

The civil rights community is prepared to meet these challenges. Today’s education system is rife with racial biases. Affirmative action remains vital for recognizing that race continues to play a role in individuals’ lived experiences and opportunities, and that racial diversity ensures tomorrow’s future leaders come from all walks of life and learn to thrive in our stunningly diverse world.

Genevieve Bonadies Torres serves as counsel for the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law. She was lead counsel for student amici in the Boston District Court trial defending Harvard’s right to consider race in admissions to promote diversity and inclusive access.