ANALYSIS: Colleges Likely to Seek Workarounds in Aftermath of Ban on Affirmative Action

Students walk near Royce Hall on the campus of UCLA in Los Angeles on April 23, 2012. Kevork Djansezian/Getty Images

The admissions process at many American colleges and universities may be dramatically altered after the June 29 Supreme Court ruling that overturns the practice of broadly applying racial considerations in the selection of incoming students.

The 6–3 ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College upends the longstanding practice of considering students’ race in granting admission.

The full implications of the 237-page decision are not yet clear, legal experts say. But the ruling, at a minimum, will force institutions of higher learning to find alternatives to achieving the goal of creating a diverse student body.

The ruling was applied to two separate cases— one against Harvard, a private institution; and the other against the University of North Carolina, a public school.

Plaintiffs alleged that both universities discriminated against white and Asian applicants by giving preferential consideration to Black, Hispanic, and Native American students. As evidence, plaintiffs pointed to data showing that among Black and Asian students having nearly identical GPAs and test scores, Black students were admitted at a much higher rate.

The schools acknowledged that their admission policies used race as one consideration in an effort to create a diverse learning environment.

Under previous court decisions, race could be considered as one factor among others in college admissions for the purpose of creating a diverse learning environment, which was seen as a compelling interest for learning institutions.

Students walk the campus at the University of California–Berkeley, in a file photo. David A. Litman/Shutterstock

The court held that the policies of the two institutions did not meet those tests but that they “engaged in stereotyping,” legal analyst Laura Jarrett said in an NBC television interview.

The decision will not affect fall 2023 admissions, according to Nicolas Creel, assistant professor of business law at Georgia College & State University, because those determinations have been made.

“This decision will, at most, disallow universities from using race as a consideration for the upcoming 2024 admissions as we are far past the point where we could conceivably retroactively adjust admissions for our incoming freshmen classes,” Creel told The Epoch Times.

However, schools that want to maintain something like their current admissions policies and racial balances will likely find workarounds to accomplish the goal, experts say.

Economic Preference

“One option that we might see a few states adopt would be to encourage universities to develop a system where those of a lower socioeconomic status have a higher chance of admission,” said Creel.

“While a program like this would be race-blind on its face, the net effect would be racially imbalanced in that it would help students of color much more so than it would whites,” he said, given that minorities are overrepresented at the lower end of the economic spectrum.

“A program like this would almost certainly survive  a constitutional challenge in that discrimination based on socioeconomic status only need pass a very low level of judicial scrutiny,” Creel said.

Admit, Deny

Many colleges and universities accept far more students than they enroll. Often, the financial aid package offered to a student is the deciding factor in enrollment. And that provides a second opportunity to shape the racial makeup of the student body.

“The biggest impact this will have is on the more selective colleges that have to artificially limit the admissions of Asian American students,” Danilo Umali, founder at Game Theory College Planners, told The Epoch Times.

“They may play ball by admitting more Asian American students, but severely limit the amount of aid that they award, thus pricing the college out of reach. That is a pattern we’ve seen in the past if a college is looking to ‘admit/deny’ a group of students,” Umali said. “Colleges have used this methodology to admit students they have no intention of allowing on campus.”

The level of support for minority applicants can also be a factor in their decision to enroll, some experts point out. Given that many minority students have comparatively little family support and may be first-generation college students, colleges that want a higher number of such students often provide on-campus support, like programs to ease the transition to college life, counseling, or assistance in applying for work-study programs or financial aid.

Legacy Policies

Critics of affirmative action have pointed out that economic discrimination is widely accepted in college admissions.

Michelle Obama, reacting to the decision on Twitter, wrote that students are often given preferential admissions status if their parents are alumni of the school or are able to pay for additional tutoring or coaching in taking standardized tests. Others have pointed out that a parent’s ability to make financial contributions to the school is often a factor in the admissions process.

“So often, we just accept that money, power, and privilege are perfectly justifiable forms of affirmative action, while kids growing up like I did are expected to compete when the ground is anything but level,” Obama wrote.

U..S. Supreme Court Justice Neil Gorsuch—who received his law degree from Harvard Law School—had previously signaled that one reason for siding with the plaintiffs could be that the defendants had not tried to achieve racial balance by adjusting those factors.

U.S. Supreme Court Associate Justice Neil Gorsuch poses for an official portrait at the Supreme Court building  on Oct. 7, 2022. Alex Wong/Getty Images

“Justice Gorsuch was very focused on in oral arguments, essentially saying, ‘If diversity is truly your genuine goal, Harvard, then why don’t you get rid of legacy?’” Jarrett said, meaning the practice of favoring the children of alumni.

“Why don’t you get rid of all standardized testing? ... If you want to strip away all those and then come to us and say, ‘We still can’t achieve the racial makeup that we want,’ that would be one thing. But you haven’t even tried,” said Jarret, paraphrasing Gorsuch’s argument.

It’s uncertain whether institutions would alter such practices given that alumni contributions are a significant source of income for colleges and universities.

Continued Emphasis on Diversity

Regardless of the Supreme Court’s ruling, many colleges are universities are likely to continue efforts to maintain a diverse student population. A broad mix of students facilitates peer learning and can help students form their own thinking on important issues, experts say.

Harvard issued a statement on the ruling saying that it would comply but holds to the value of creating a diverse learning environment.

“We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday. So too are the abiding values that have enabled us—and every great educational institution—to pursue the high calling of educating creative thinkers and bold leaders, of deepening human knowledge, and of promoting progress, justice, and human flourishing,” the June 29 statement said.

States that have already banned affirmative action are California, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and Idaho. Washington instituted a ban but repealed it in 2022.