Universities Say Affirmative Action Ban Won’t Stop Them From Pursuing Racial Outcomes

Harvard Yard, old heart of Harvard University campus, in Cambridge, Mass., in 2013. Jannis Tobias Werner/Shutterstock

While there has been much debate over the Supreme Court’s recent ruling on the use of affirmative action in schools, many believe that it won’t change the goals many institutions have of achieving race-based outcomes.

Richard Lempert, who helped draft a university affirmative action policy that the Supreme Court upheld 20 years ago, agrees.

After the Supreme Court’s 1978 decision in Regents of the University of California v. Bakke, where racial quotas were ruled impermissible but affirmative action was upheld, the University of Michigan set out to draft an affirmative action policy for its admissions process. The ruling motivated the school to seek social justice as well as promote racial diversity, according to Richard Lempert, who chaired the committee at University of Michigan Law School that wrote the policy.

Change was gradual, Lempert said in an interview with The Epoch Times, not because the school did not want to act, but because in the first few years they received few minority applicants, and even fewer qualified minority applicants. He recalled that for a few years early on, this meant some of those minority students had trouble with their law school coursework. They tightened admission credentials after that, and saw the achievement gap close in part academically, and close substantially post-graduation in the workforce.

“It was due to the terrible state of the K-12 education of minorities and lack of applicants who were well prepared,” said Lempert, a former Brookings Institute senior fellow and Eric Stein Distinguished University Professor of Law and Sociology Emeritus. At the University of Michigan, both the undergraduate program and the law school had affirmative action policies, and Lempert credits the undergraduate policy in part for raising the number of qualified minority applicants at the law school.

In 2003, these policies were challenged at the Supreme Court in Grutter v. Bollinger, and the undergraduate policy was ruled impermissible while the law school policy that Lempert helped write was deemed permissible. Then in 2006, Michigan voters passed Prop 2, which banned affirmative action in admissions.

The policy had “lots and lots of benefits,” said Lempert, who was teaching a class on evidence when O.J. Simpson was on trial. He recalled discussions where black and white students held more diverse views than the general population; black students arguing both sides led the white students to do the same.

Lempert noted that the increase in black students on campus also added pressure on the university to take additional action: hire more black professors, develop courses on race such as black studies or black history, and develop a school journal on race.

These are initiatives that universities may still take, as “diversity, equity, and inclusion“ remains a rallying cry in higher education.

The Supreme Court’s much anticipated Thursday ruling on race-based admissions in the cases Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College and SFFA v. University of North Carolina was preceded by universities and organizations across the country declaring their commitment to diversity initiatives.

Zip codes might be a proxy for consideration, Lempert projected, as well as LSAT scores. These are metrics that correlate with both race and socioeconomic status. Another major avenue would be the court’s allowance for an applicants essay discussion on “how race affected his or her life, whether it be through discrimination, inspiration, or otherwise.” (pdf)

“I think that’s going to be a major, major response by colleges but also one that’s likely to lead to more litigation,” Lempert said.

Workarounds

SFFA predicts schools will seek to find ways to work around the new Supreme Court ruling.

“We remain vigilant and intend to initiate litigation should universities defiantly flout this clear ruling and the dictates of Title VI and the Equal Protection Clause,” Edward Blum, president of SFFA, stated in a press release (pdf).

“The law will not tolerate direct proxies for racial classifications.”

Prior to the Supreme Court decision, several states already had affirmative action bans. California and Texas were the first, with bans in 1996, though Texas had that ban overturned with the 2003 Grutter v. Bollinger decision.

Ward Connerly, a black businessman and activist, and member of the University of California’s Board of Regents, was the main proponent of California’s Prop 209, which sought to “eliminate state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involve ‘preferential treatment’ based on race, sex, color, ethnicity, or national origin.” The effort to “build diversity” through such measures was “just a euphemism for discrimination,” he told Politico ahead of the Supreme Court’s ruling.

Despite the nearly three-decade ban, the University of California is proud of its diversity efforts, and has long openly shared its methods, which include recruiting applicants from specific areas, partnering with local race- or ethnicity-based organizations, and its hiring goals.

“Changing our trajectory with Black students and other historically underrepresented groups requires a community strategy that is intentional and continuous,” Sandra Williams-Hamp, executive director of Outreach and Educational Partnerships at the UC Office of the President, said in a UC publication.

Michigan Law, similarly “race-blind” since 2007, points out on its website that the breakdown of students is 58 percent white and 42 percent “students of color.” Senior Assistant Dean Sarah Zearfoss shared in a university interview advice for other schools with commitments to racial diversity: “This will be a long process—a marathon, not a sprint.”

“While I’m satisfied that our policy and process work the best for our goals within the limits of the law, there is no question that omitting race as a data point meant that we struggled for many years with enrolling a racially diverse student body,” Zearfoss said. “But if having a racially diverse population is important to your institutional mission, you have to keep at it.”

The Association of American Universities, which represents research universities including those in several states with affirmative action bans, released a statement underlining its intention to pursue racial diversity: “As a leading voice in higher education, AAU will continue its work to advance equity, promote inclusive environments, and speak out on the value of diversity on our campuses.”

Even the Justice Department responded in kind.

“The Department of Justice remains committed to promoting student diversity in higher education using all available legal tools. In the coming weeks, we will work with the Department of Education to provide resources to college and universities on what admissions practices and programs remain lawful following the Court’s decision,” stated Attorney General Merrick Garland.

In North Carolina, some state lawmakers welcomed the Supreme Court ruling.

North Carolina Republican House Majority Whip Jon Hardister and Republican Rep. Ray Pickett, who co-chair the Education-University Committee, applauded the decision.

“People should be treated equally, regardless of immutable characteristics. We should judge people on their merits, not the color of their skin. No matter how well-intentioned, race-based admissions promote racial discrimination and cause division in our society,” Hardister wrote in an email. “If we want to move forward as a more just nation, we need to stop this sordid affair of dividing ourselves based on race. This ruling is a positive step towards fairness and equality in our society.”

“The decision by the Supreme Court is welcome news for hardworking students in our state and across the country. It is a win for fairness, merit, and equal opportunity for all students. As a state lawmaker, we will be watching closely to ensure our public universities and colleges comply with the ruling,” Pickett shared in a statement.

Lempert says money is another big factor. Prestigious schools, medical schools, and law schools are more selective than most, and scholarships play a big role in whether an applicant, even if admitted, can enroll. Ironically, he said, the less selective schools may in fact offer fewer scholarships to minorities, meaning these applicants could end up paying less for a higher quality education and degree at a more prestigious school if racial preferences as a factor in financial aid are allowed to continue.

Race and Class

Both supporters and critics of the ban on race-based admissions point to socioeconomic status and favoritism for children of influential alumni as an ongoing issue, some asserting it is a much bigger problem than race in admissions.

Former First Lady Michelle Obama shared a statement on Twitter, writing she had been “one of the few Black students” on campus and “I knew I'd worked hard for it. But still, I sometimes wondered if people thought I got there because of affirmative action.”

She noted that students had been and continue to be admitted with other special considerations. “Some have parents who graduated from the same school. Others have families who can afford coaches to help them run faster or hit a ball harder. Others go to high schools with lavish resources for tutors and extensive standardized test prep that help them score higher on college entrance exams.”

“We don’t usually question if those students belong. 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,” she wrote.

SFFA singled out the same issue in its post-ruling statement.

“For decades, our nation’s most elite universities have given preferences to the children of alumni, faculty and staff, athletes, and notably, substantial donors,” it reads.

“The elimination of these preferences is long overdue and SFFA hopes that these opinions will compel higher education institutions to end these practices.”

Justice Neil Gorsuch, in an opinion concurring with the majority opinion, wrote “[Harvard’s] preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives. While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most.”

Justice Sonia Sotomayor, in a dissenting opinion, wrote, “Underrepresented minorities are less likely to have parents with a postsecondary education who may be familiar with the college application process. Further, low-income children of color are less likely to attend preschool and other early childhood education programs that increase educational attainment.”